Sasser v. State, 18431.

• Decision Date: 28 October 1936
• Docket Number: No. 18431.,18431.
• Citation: 98 S.W.2d 211
• Parties: SASSER v. STATE.
• Court: Texas Court of Criminal Appeals

Page 211

98 S.W.2d 211

SASSER v. STATE.

No. 18431.

Court of Criminal Appeals of Texas.

October 28, 1936.

Rehearing Denied November 25, 1936.

Commissioners' Decision.

Appeal from District Court, Red River County; N. L. Dalby, Judge.

Juette Sasser was convicted of theft, and he appeals.

Affirmed.

R. E. Eubank and Herbert L. Jones, both of Paris, and C. A. Holloway, of Clarksville, for appellant.

Lloyd W. Davidson, State's Atty., of Austin, for the State.

KRUEGER, Judge.

Appellant was convicted of the offense of theft, and his punishment was assessed at confinement in the state penitentiary for a term of ten years.

The indictment in this case in due form charged the appellant with the theft of an automobile from O. V. Medford, and for the purpose of enhancing the punishment it was averred in the indictment that on or about the 11th day of December, 1933, he (defendant) had been convicted in the district court of Red River county of a similar offense, to wit, burglary with intent to commit theft. Appellant contends that the offense of burglary with intent to commit theft is not an offense of like nature as that of theft which would authorize the enhancement of his punishment. We cannot agree with him for the reason that in theft cases the primary object is to unlawfully obtain another's property without his consent. For a better understanding of the conclusion reached by us, we make the following illustration: If A goes to B's garage, finds the door to it open, and steals B's car, it is theft. If, however, he finds the door closed, breaks it open, and steals the car, it is nevertheless theft even though the offense may be denominated burglary with intent to commit theft; theft being the primary object of the offender in each instance. The only difference is the means used. Therefore, we are of the opinion that the two offenses charged are of like nature. See Warner v. State, 118 Tex.Cr.R. 351, 42 S.W.(2d) 616.

Bill of exception No. 1 complains of the admission of the testimony as to the appellant's escape from jail, and bill No. 2 complains of the admission of testimony as to the value of the alleged stolen car. We think that both of said bills of exception are without merit and are overruled without discussion.

By bill of exception No. 3 appellant complains of the admission as evidence of the judgment of appellant's conviction in the district court of Red River county in cause No. 10559 because in the indictment upon which the appellant was tried in the instant case, it was not averred that the former conviction was in cause No. 10559. We deem the allegations in the indictment sufficient to warrant the admission of the judgment of conviction, for the reason that it was averred in the indictment that the appellant had been theretofore on the 11th day of December, 1933, convicted in the district court of Red River county of the offense of burglary with intent to commit theft, giving the style of the case, the court wherein convicted, and the date of conviction. This was sufficient to place the appellant upon notice that the state relied for the enhancement of the punishment in the instant case upon the conviction obtained in the district court of Red...