Schenk v. State
| Decision Date | 17 February 1915 |
| Docket Number | (No. 3430.) |
| Parties | SCHENK v. STATE. |
| Court | Texas Court of Criminal Appeals |
Appeal from District Court, Archer County; Edgar Scurry, Judge.
L. N. Schenk was convicted of theft, and appeals. Reversed and remanded.
Henley & McComb, of Jacksboro, for appellant. C. C. McDonald, Asst. Atty. Gen., for the State.
Appellant was convicted of misdemeanor theft, and his punishment assessed at one day imprisonment in jail and a fine of $25.
The indictment in this case charged appellant with the theft of the following property:
One engine lubricator of the value of $12.00
Two oil cups of the value of two dollars
Three hard oil cups of the value of three and 50/100 dollars
One fan leather belt of the value of ten dollars
One condensor leather belt of the value of twelve dollars
One distributer leather belt of the value of thirty dollars
Two lead mill leather belts of the value of eleven dollars.
A motion was made to quash the indictment, alleging that the description was insufficient. The court did not err in overruling the motion. Green v. State, 28 Tex. App. 493, 13 S. W. 784, and cases cited in section 1481, White's Ann. Pen. Code.
O. W. Tschoepe testified to the loss of the above-described property, saying:
By bill No. 1 it is shown that on cross-examination he testified in regard to the alleged distributer leather belt:
The defendant moved the court to withdraw all the witness' testimony in regard to the distributer leather belt, "and to strike from the indictment the item of `one distributer leather belt,' because the state, having alleged a specific belt, to wit, a `distributer leather belt,' should have been confined to proof of said belt as alleged; and such proof was not made by proving a `distributer drive belt,' or a `large leather belt that drives the distributer belt,' or a `drive belt,' nor that a distributer belt was a canvas belt; that such proof was at fatal variance with the express allegations in the indictment and did not prove said allegations." Of course, the court had no authority to strike that item from the indictment, and we do not think the court erred in not withdrawing the testimony. The testimony of the witness tended to prove that a leather belt was missing, called by him a "distributer leather belt." It may be its proper name was something else, but the witness described the use of the belt, and the reason why he called it as he did.
The next bill complains that the court erred in not permitting him to prove by Joe Brown that August Bomhardt and others took from the gin some furnace grates and put them in a threshing machine furnace belonging to August Bomhardt and Joe Moore. It may be that these gentlemen had authority from the owners to take the furnace grates. At least the bill does not negative such fact. But if they took the grates without authority, and were liable to prosecution for so doing, neither of the gentlemen were witnesses in this case, and to prove such fact would have no tendency to show whether or not appellant took the property he is alleged to have taken. Neither did the court err in refusing to permit Jim Vickers to testify that he saw the above-named gentlemen and Joe Moore take some other property from the gin. If they were guilty of wrongdoing, it would be no justification of appellant. It was not contended that they took the property, or any part thereof, with which appellant was charged with taking, and, no matter how many other men may have taken property from the gin, it would not authorize appellant to also take property therefrom without the owner's consent, if he did so.
The gin Tschoepe had in his charge, according to the testimony offered by the state, was owned by a company, and appellant testified he owned a part of the stock, and was therefore part owner of the gin. The state on cross-examination asked when he purchased the stock, and what he paid for it. These questions were objected to by appellant, but his objections were overruled, and he answered that he gave some cotton seed to one man for his stock, and had paid another man $1 to bind the trade for the stock he had purchased from him. When he sought to prove that he was part owner of the gin, and therefore had a right to take the things he was charged with taking, if he did take them, the state had a...
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Wood v. State, 67486
...suit of clothes," Baldwin v. State, 76 Tex.Cr.R. 499, 175 S.W. 701 (1915); "one lubricator, two oil cups, (etc.)," Schenk v. State, 76 Tex.Cr.R. 564, 174 S.W. 357 (1915); "$4 in money, 2 knives, & one ring," Campbell v. State, 61 Tex.Cr.R. 504, 135 S.W. 548 (1911); "one watch & one pocket k......
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Burrell v. State
...in light of the statute (a forerunner of Article 28.10, Vernon's Ann.C.C.P. containing the same wording). See also Schenk v. State, 76 Tex.Cr.R. 235, 174 S.W. 357 (1915). Jeters v. State, 128 Tex.Cr.R. 379, 82 S.W.2d 150 (1935), also made clear that an amendment as to the substance of the i......
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Chisom v. State
...called is in law its name, though in fact it may bear a different name. Roman v. State, 64 Tex. Cr. R. 515, 142 S. W. 912; Schenk v. State, 174 S. W. 357. We think the variance is immaterial and could in no way have affected the rights of the appellant. The ground of aggravation relied on w......
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Howard v. State
...in light of the statute (a forerunner of Article 28.10, Vernon's Ann.C.C.P. containing the same wording). See also Schenk v. State, 76 Tex.Cr.R. 235, 174 S.W. 357 (1915). "Jeters v. State, 128 Tex.Cr.R. 379, 82 S.W.2d 150 (1935), also made clear that an amendment cannot be made even if the ......