Sims v. State

• Decision Date: 03 January 1912
• Citation: 142 S.W. 572
• Parties: SIMS v. STATE.
• Court: Texas Court of Criminal Appeals

142 S.W. 572

SIMS v. STATE.

Court of Criminal Appeals of Texas.

January 3, 1912.

Appeal from District Court, Galveston County; Clay S. Briggs, Judge.

Effie Sims was convicted of theft from the person, and appeals. Affirmed.

T. C. Turnley and O. S. York, for appellant. C. E. Lane, Asst. Atty. Gen., for the State.

PRENDERGAST, J.

On June 13, 1911, the grand jury of Galveston county indicted the appellant for the offense of theft from the person. The formal part of the indictment is in the usual form to which there is no objection. The charging part of the indictment charges that the appellant on or about May 3, 1911, in said county, "did then and there unlawfully and fraudulently take from the possession and person of T. P. Lucas, without the consent of the said T. P. Lucas, and so suddenly as not to allow time to make resistance, before said property was carried away, corporeal personal property belonging then and there to T. P. Lucas, to wit, one pocketbook, containing one ten-dollar bill and two five-dollar bills, all of the aggregate value of twenty dollars, good and lawful money of the United States of America, and with the intent then and there on the part of her, the said Effie Sims, to deprive the said T. P. Lucas of the value of the same, and with the intent to appropriate the same to the use and benefit of her, the said Effie Sims." The case was tried on July 3, 1911, the appellant convicted, and her penalty fixed at two years in the penitentiary.

Two witnesses only testified on the trial, both for the state.

T. P. Lucas, the complaining witness, testified, identifying positively the appellant as the party charged with the offense in this case as the person who committed it. He further testified: That on the night of May 3 or 4, 1911, in the city of Galveston, he was going along one of the streets towards Broadway on Twenty-Second. That near one of the city lights appellant accosted him, asking him if he had a dime. He replied, in substance, that he did not. She followed him a few steps, and said: "Please give me a dime. I am hungry." He then felt in his pocket for a loose dime, but found none, thereupon with his left hand he took his pocketbook out of his pocket to give her a dime. She was then standing right in front of him, and suddenly grabbed the pocketbook with its contents out of his hand, and ran down an alley. When he took his pocketbook out of his pocket, he was looking at the pocketbook, when she suddenly grabbed it out of his hand and ran. He took after her, and ran after her, holloing for her to stop, and that he would shoot her, but could not overtake her, and she did not stop. That about a week before that he had received a hurt, and, after chasing her some distance, he collapsed, and could not overtake her. That appellant in running from him with the purse and its contents, and while he was chasing her, almost ran into Cassie Holmes, who was closing up, or about to enter her, Cassie Holmes', house. When this occurred, and Cassie Holmes, seeing the appellant fleeing from Lucas, holloed, and Lucas then stopped where Cassie Holmes was, and had some conversation with her about the theft. He further testified: "That pocketbook was taken from my hand. It took her just a second to grab it out of my hand. It was quicker than I could think." In further describing the property stolen he testified: "As near as I can remember, the contents of that pocketbook was to the amount of about $25, in two $5 bills, a $10 bill, and about $5 in specie. * * * By `pocketbook' I mean a small leather purse for carrying money in. In that pocketbook there were two $5 bills, a $10 bill, and some change to the extent of $5. There was a $10 bill and two $5. The value of the pocketbook without the contents was 25 cents. I have never gotten any of this money back. I never saw the money after it was grabbed from me."

Cassie Holmes, the only other witness, testified that, immediately preceding the appellant nearly running into her when fleeing from the prosecuting witness, who was after her, she had passed them (appellant and Lucas), standing near said light; that they were talking at that time. She fully corroborated Lucas as to the identity of appellant, his chasing her, the appellant nearly running into her, and Lucas stopping, and then telling her of the occurrence; she stating that he then said to her: "She asked me for something to eat, and, when I got my pocketbook out to give her something, she grabbed the whole damned thing."

We have given in substance all of the testimony. The appellant did not testify on the trial.

The record shows that in the court below the appellant made a motion to quash the indictment on two grounds: First, because it had not followed the statute, in that the word "privately" was not alleged in the indictment as the gist of the offense of theft from the person. The second ground was "because the indictment in attempting to set out the kind of money stolen does not state that the money was coin or legal tender by act of Congress, or that a better description was to the grand jurors unknown, nor neither is the number or denominations of same given, nor stated that number of bills or denomination was to the grand jurors unknown." The record does not show that the court below acted on this motion, as there is no judgment of the lower court on the subject.

As shown by the copy of the charging part of the indictment above, the property was described as "one pocketbook containing one ten-dollar bill and two five-dollar bills, all of the aggregate value of twenty dollars, good and lawful money of the United States of America." As we understand this language the property charged to have been stolen from the person of the prosecuting witness was "one pocketbook." The other language immediately following, "containing one ten-dollar bill and two five-dollar bills," merely states what the "pocketbook," which was stolen, contained. Not that she stole one $10 bill and two $5 bills, for what follows is "all of the aggregrate value of twenty dollars good and lawful money of the United States of America," meaning that all of the property, the pocketbook and its contents, the $10 bill and the two $5 bills, "aggregated the value of twenty dollars, good and lawful money of the United States of America." The good and lawful money refers to the value of all of the aggregate property, the pocketbook, and the $10 and two $5 bills in it.

Code of Criminal Procedure 1895, art. 446, is: "When it becomes necessary to describe property of any kind in an indictment, a general description of the same by name, kind, quality, number and ownership, if known, shall be sufficient. It the property be real estate, its general locality in the county, and the name of the owner, occupant, or claimant thereof, shall be a sufficient description of the same." Our statute on the subject of theft (Pen. Code 1895, art. 866), defining property, is: "Art. 866. The term `property,' as used in relation to the crime of theft, includes money, bank bills, goods of every description commonly sold as merchandise, every kind of agricultural produce, clothing, any writing containing evidence of an existing debt, contract, liability, promise or ownership of property real or personal, any receipts for money, discharge, release, acquittance and printed book or manuscript, and in general any and every article commonly known as and called personal property, and all writings of every description, provided such property possesses any ascertainable value." And article 859, P. C., says: "The property must be such as has some specific value capable of being ascertained. It embraces every species of personal property capable of being taken."

This court, through Presiding Judge Davidson, in the case of Campbell v. State, 135 S. W. 548, in discussing the sufficiency of the allegations, which we think is also applicable to the proof necessary to sustain them, has so well expressed the law that we here quote his opinion: "This conviction was for theft from the person. Appellant made a motion to quash the indictment, because the description of the alleged stolen property is insufficient to put the defendant on notice of what he is charged with taking, that it does not describe the character of money, or that it passed current as money, and gives no further description, and it fails to charge what character or kind of knives were taken, and it gives no description or value of the ring. The indictment, in so far as the motion to quash attacks it, is in the following language: `Corporeal personal property then and there belonging to the said Tom Harrison, to wit, four dollars in money, two knives and one ring.' It is not necessary in charging theft from the person to allege the value. Theft from the person is different from the ordinary theft in this respect. Any theft from the person is a felony, by the terms of the statute, as is theft of a horse, cow, or hog; the value not being a necessary element. It differs from the general statute of theft in this respect: Under the general statute, the value is made the basis or criterion of punishment. Where it is under $50, it is a misdemeanor. Where it is over that amount, it is a felony. Any theft from the person is a felony. Shaw v. State, 23 Tex. App. 493, 5 S. W. 317; Bennett v. State, 16 Tex. App. 236; Harris v. State, 17 Tex. App. 132; Green v. State, 28 Tex. App. 493, 13 S. W. 784. Under these authorities, the second question may be as well answered that the description is sufficient. Four dollars in money, two knives, and one ring constitute property. Certainly $4 in money would necessarily have a value, whether it be money issued under the authority of the United States, or any other government. While coin or money of foreign governments would not be money in the United States, unless provided so by act of Congress, yet such money would have a value. It was held in Shaw v. State, supra, that...