Price v. State, 28778

• Decision Date: 20 November 1957
• Docket Number: No. 28778,28778
• Citation: 308 S.W.2d 47,165 Tex.Crim. 326
• Parties: Bill PRICE, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Criminal Appeals

Page 47

308 S.W.2d 47

165 Tex.Crim. 326

Bill PRICE, Appellant, v.The STATE of Texas, Appellee.

No. 28778.

Court of Criminal Appeals of Texas.

Nov. 20, 1957.

[165 TEXCRIM 326]Murray J. Howze, Monahans, for appellant.

Leon B. Douglas, State's Atty., Austin, for the State.

WOODLEY, Judge.

Appeal from this conviction was dismissed on a prior day.Price v. State, Tex.Cr.App., 299 S.W.2d 141.

It is now shown that the records of the trial court have been corrected by nunc pro tunc orders which show that proper notice of appeal was timely given, and a bond on appeal has been entered into.The appeal will therefore be reinstated.

The indictment charged the theft of a 1953 Cadillac automobile 'of the value of $50.'

[165 TEXCRIM 327]Appellant pleaded guilty to this charge, waived a jury, and testified as a witness at the trial.The injured party also testified.

Art. 12, Vernon's Ann.C.C.P. provides in part that where a jury is waived in a felony case, 'in no event shall a person charged be convicted upon his plea of guilty without sufficient evidence to support the same.'

We have carefully examined the statement of facts in search of evidence to sustain the allegation of the indictment that the property alleged to have been stolen was of the value of $50.We find none.

The absence of any evidence as to the value of the 1953 Cadillac may or may not account for the fact that both the judgment and sentence refer to the offense as 'theft by pretext' with no recitation as to value and none to show that the offense was a felony save the punishment.Be this as it may, there was no effort made to prove the value of the automobile and the trial court made no finding that it was of the value of $50 or more.

The legislature has not seen fit to make the theft of an automobile a felony without regard to its value, and a prosecution for theft of an automobile must therefore be brought under the general theft s...