Price v. State, 28778

Decision Date20 November 1957
Docket NumberNo. 28778,28778
Citation308 S.W.2d 47,165 Tex.Crim. 326
PartiesBill PRICE, Appellant, v. The STATE of Texas, Appellee.
CourtTexas Court of Criminal Appeals

[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 statutes.

Under the general theft statutes, the grade of the offense and the punishment applicable depend upon the value of the property stolen and same must be alleged and proved. Meyer v. State, 4 Tex.App. 121; Sands v. State, 30 Tex.App. 578, 18 S.W. 86; Wills v. State, 40 Tex. 69, 70; Steel v. State, 153 Tex.Cr.R. 88, 217 S.W.2d 857; 41A Tex.Jur., p. 164, Sec. 176.

Proof that the automobile was of the value of $50 or more was essential to a conviction for felony theft, without which the evidence is insufficient to meet the requirements of art. 12,...

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21 cases
  • U.S. v. DiGilio
    • United States
    • U.S. Court of Appeals — Third Circuit
    • August 10, 1976
    ...So.2d 224, cert. denied, 280 Ala. 711, 191 So.2d 229 (1966); Johnson v. State, 102 So.2d 412 (Fla.Dist.Ct.App.1958); Price v. State, 165 Tex.Cr. 326, 308 S.W.2d 47 (1957). Compare Head v. Hargrave, 105 U.S. 45, 49-50, 26 L.Ed. 1028 We conclude that there was insufficient evidence from which......
  • Barnes v. State
    • United States
    • Texas Court of Criminal Appeals
    • June 2, 1971
    ...and the punishment applicable depend upon the value of the property stolen and the same must be alleged and proved. See Price v. State, 165 Tex.Cr.R. 326, 308 S.W.2d 47. The same would be true of a prosecution brought under the provisions of Article 1341, V.A.P.C. (driving vehicle without o......
  • United States v. James, Cr. A. No. 15555.
    • United States
    • U.S. District Court — Western District of Louisiana
    • September 30, 1960
    ...Ill. 286, 73 N.E.2d 288; Wright v. Commonwealth, 196 Va. 132, 82 S.E.2d 603; State v. Baker, 100 Vt. 380, 138 A. 736; Price v. State, 165 Tex.Cr.R. 326, 308 S.W. 2d 47; Steel v. State, Tex.Cr.App., 217 S.W.2d 857; and Wilson v. State, Ala., 1 Port. 3 "No person shall be held to answer for a......
  • Benoit v. State, s. 54296-54300
    • United States
    • Texas Court of Criminal Appeals
    • May 25, 1977
    ...1429, Sec. 1, Vernon's Ann.P.C.: " 'Without such an allegation the punishment cannot be determined.' See also Price v. State, 165 Tex.Cr.R. 326, 308 S.W.2d 47 (1957), and cases "It is clear from what has been said that the indictment in the instant case is fundamentally defective for the fa......
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