Shaw v. State

• Decision Date: 08 June 1887
• Citation: 5 S.W. 317
• Parties: SHAW v. STATE.
• Court: Texas Court of Appeals

5 S.W. 317

SHAW v. STATE.

Court of Appeals of Texas.

June 8, 1887.

On rehearing.¹

Appeal from district court, Fannin county; D. H. SCOTT, Judge.

Appellant was convicted of theft of a gold ring from the person of Della Fry, on November 30, 1886, and his punishment was assessed at a term of three years in the penitentiary. According to Miss Fry's testimony, she and defendant occupied different places in a quadrille, and danced at a party at the house of a Mrs. Wilson, on the night of the theft. When defendant caught her hand to swing her in the figure known as "grand chain," he endeavored to remove her ring from her finger, but she frustrated that attempt. When the figure was performed the second time, he repeated his attempt and succeeded. When the figure was completed, witness told her partner that she had lost her ring. Lights were thrown on the floor, and a general search was made for it. Looking the defendant straight in the face, she told her partner and those aiding in the search that they need not look on the floor; that somebody had it. Defendant heard her remark, pulled his hat down over his face, turned his back on witness, and entered into a conversation with his partner. Witness, fearful of precipitating a row, declined then to tell who took her ring. Tom Jones and Hiram Short, testifying for the state, corroborated the material statements of Miss Della Fry, except those immediately relevant to the taking of the ring from her finger, about which they said nothing. Neither of them asked defendant for the ring, because they did not know he had it.

C. D. Grace and Taylor & Galloway, for appellant. Asst. Atty. Gen. Davidson, for the State.

WHITE, P. J.

At a former day of the present term, we affirmed the judgment of the court below convicting this appellant of theft from the person, and assessing his penalty at three years in the penitentiary. His motion for a rehearing, which is supplemented by an able brief and argument of his counsel, presents three questions for adjudication, and upon which it is insisted the judgment is erroneous and should be reversed. First, it is contended that the indictment is invalid because it does not allege the value of the property, or that the property had any value; second, that the evidence does not show the value of the property, or establish for it any value whatsoever; and, third, that the evidence is insufficient, and fails to show a fraudulent intent on the part of the defendant in taking the property, but, on the contrary, shows an innocent intent and innocent mistake on his part.

As to the indictment, it charged, in substance, that appellant fraudulently and privately took from the possession and person of Della Fry, to-wit, one certain gold finger ring, without her consent, and so suddenly as not to allow time to make resistance before the same was carried away, with intent to deprive Della Fry of the value of said ring, and to appropriate the same to his own use, etc. As defined in articles 744 and 745 of the Penal Code, the offense is sufficiently charged in the indictment, and the indictment follows the approved forms and precedents. See Willson, Crim. Forms, No. 472, p. 206. In the offense of privately stealing from the person of another, the value of the property...