Staha v. State

• Decision Date: 27 November 1912
• Citation: 151 S.W. 543
• Parties: STAHA v. STATE.
• Court: Texas Court of Criminal Appeals

151 S.W. 543

STAHA v. STATE.

Court of Criminal Appeals of Texas.

November 27, 1912.

Appeal from Lavaca County Court; P. H. Green, Judge.

Vall Staha was convicted of theft, and he appeals. Affirmed.

C. E. Lane, Asst. Atty. Gen., for the State.

DAVIDSON, P. J.

Appellant was convicted of theft; his punishment being assessed at a fine of $5 and 20 days' imprisonment in the county jail.

There are two theories in the case, one showing criminality, and the other showing innocent possession of the property appellant was charged with taking. We deem it unnecessary to go into the statement of facts to collate the evidence pro and con on this question.

It is contended that the evidence does not support the allegation in the information that Ragsdale was the owner of the property. The property taken was a generator from an automobile. It was in the garage belonging to a man whose name was Drozd, and appellant had an automobile in the same garage, which seems to have been in a bad condition, and was sold to him as a worn-out vehicle. It did not have a generator. Appellant went in the garage at night after his auto, which he had a right to do, and hauled it out. When in there he says he picked up the generator lying on the ground, thinking it belonged to his machine. The evidence for the state, on the contrary, is that it belonged to Ragsdale's machine and was lying over on his machine, and not where appellant claimed it was. There it testimony also that appellant sold the generator to another party. Drozd was in charge of the garage, and it belonged to him, and the Ragsdale machine was in this garage. It seems that when Ragsdale was not using the machine he kept it there. The contention is that this made Drozd the owner of it, having care, custody, and control. We do not believe this position is sound under the authorities. Mere custody as this was does not constitute that character of control, care, and management that constitutes ownership or authorizes the allegation of ownership for want of consent, etc. See Branch's Crim. Laws of Texas, § 785. Mere custody is not possession. Thomas v. State, 1 Tex. App. 289; Garling v. State, 2 Tex. App. 44; Bailey v. State, 18 Tex. App. 426; Clark v. State, 23 Tex. App. 614, 5 S. W. 178; Hawkins v. State, 20 S. W. 830; Graves v. State, 42 S. W. 300; Willis v. State, 44 S. W. 826; Odell v. State, 44 Tex. Cr. R. 310, 70 S. W. 964; Byrd v. State, 49 Tex. Cr. R. 279, 93 S. W. 114; King v. State, 100 S. W. 387; Bryan v....