Still v. State

• Court: Texas Court of Criminal Appeals
• Writing for the Court: Brooks
• Citation: Still v. State, 50 S.W. 355 (Tex. Crim. App. 1899)
• Decision Date: 08 March 1899
• Parties: STILL v. STATE.

50 S.W. 355

STILL v. STATE.

Court of Criminal Appeals of Texas.

March 8, 1899.

Appeal from district court, Hardeman county; G. A. Brown, Judge.

Frank Still was convicted of theft from the person, and he appeals. Affirmed.

Speer & Speer, for appellant. Robt. A. John, Asst. Atty. Gen., for the State.

BROOKS, J.

Appellant was convicted of the offense of theft from the person, and his punishment assessed at confinement in the penitentiary for a term of two years, and he appeals.

We will consider appellant's assignment of errors in the order in which they are stated in his motion for new trial:

The first error assigned is because "the charge of the court does not conform to the offense charged in the indictment, in this, to wit: The charge of the court is upon the theory that defendant is alleged to have fraudulently stolen the money from the possession of Mike Martin, while the indictment alleges that defendant fraudulently and privately took from the possession and from the person of Martin one twenty-dollar bill, in money, of the value of twenty dollars, and without the knowledge of the said Mike Martin, and so suddenly as not to allow time to make resistance before said property was carried away." We do not think the court's charge is subject to the criticism made by appellant in this instance. The court first tells the jury what ordinary theft is, and then follows strictly the charging part of the indictment, wherein the indictment charges defendant with fraudulently and privately taking from the person and possession of Mike Martin the money described in the indictment. We fail to see any error in the court's action in this regard.

The second error complained of by appellant is "because the charge of the court comprehends a ground upon which the defendant cannot be convicted under the indictment, in this, to wit: The court, in its charge to the jury (paragraph 1), defines theft in general; second, there was no evidence to support the charge of theft; and, third, the charge was not authorized by the indictment, which alleges that defendant fraudulently and privately took from the possession and from the person of Mike Martin, which charge of the court was material error, and calculated to injure the rights of the defendant." And in his third assignment he complains "because the court does not, in its charge, define the essential elements of the offense alleged in the indictment." It was proper and right for the court to define theft in general, because the same was necessary to a proper comprehension and understanding of what the statute meant by theft from the person, and the general definition of theft is comprehended in the definition of theft from the person. There is no merit in the second ground of objection. We differ with appellant as to the third ground, and think the charge properly defines the essential elements of the offense alleged in the indictment.

Appellant's fourth assignment of error is as follows: "Because the court misdirected the jury in the third paragraph of its charge, in this, to wit: `Now, if you believe from the evidence beyond a reasonable doubt that the defendant, Frank Still, and Henry Skinner, in Hardeman county, Texas, on or about the 25th day of May, 1898, did fraudulently and privately take from the person and possession of Mike Martin the money described in the indictment, without the consent of the said Mike Martin, and without his knowledge, with intent to deprive said Mike Martin of the value of the said money, and to appropriate it to the use and benefit of them, the said Frank Still and Henry Skinner; or if you so believe that the said Frank Still and Henry Skinner did then and there so fraudulently take the money described in the indictment from the person and possession of Mike Martin, without his consent, and so suddenly as not to allow the said Mike Martin to make resistance to such taking before the money was carried away, taking into consideration his condition at the time; and you further find and believe that such sudden taking, if any, was with intent to deprive the said Mike Martin of the value of said money, and to appropriate it to the use and benefit of the said Frank Still and Henry Skinner,—then, in either of the cases stated in this paragraph of the charge, you will find the defendant guilty as charged in the indictment. But, if you do not so believe, you must acquit the defendant.'" Now, appellant's complaint of said charge is "that it is not authorized by the indictment, which alleges that defendant did fraudulently and privately take from the possession and person of Mike Martin one twenty-dollar bill, in money, of the value of twenty dollars, the same being the corporeal personal property of the said Mike Martin, without the consent and without the knowledge of the said Mike Martin, and so suddenly as not to allow time to make resistance before said property was taken away, and with the intent to deprive, etc. The charge of the court is to the effect that if defendant and Skinner took money, while the allegation of the indictment is that a twenty-dollar bill is taken." It will be seen that the indictment charged appellant "with fraudulently and privately taking from the possession and person of Mike Martin one twenty-dollar bill, in money, of the value of twenty dollars." The indictment charges that the $20 bill was money, and the court did not err in so stating to the jury in its charge. The second ground of complaint is: "The charge is not authorized by the indictment, because...