White v. State, 48169

• Decision Date: 13 February 1974
• Docket Number: No. 48169,48169
• Citation: 505 S.W.2d 258
• Court: Texas Court of Criminal Appeals
• Parties: Joel E. WHITE, Appellant, v. The STATE of Texas, Appellee.

Page 258

505 S.W.2d 258

Joel E. WHITE, Appellant, v. The STATE of Texas, Appellee.

No. 48169.

Court of Criminal Appeals of Texas.

Feb. 13, 1974.

Allen F. Cazier, San Antonio, for appellant.

Ted Butler, Dist. Atty., Gordon V. Armstrong and Douglas C. Young, Asst. Dist. Attys., San Antonio, Jim D. Vollers, State's Atty. and Buddy Stevens, Asst. State's Atty., Austin, for the State.

OPINION

DICE, Commissioner.

Appellant was convicted upon his plea of guilty to the court, a jury having been waived, of the offense of felony theft, and his punishment was assessed at confinement in the Department of Corrections for a term of four (4) years.

In separate grounds of error appellant insists that in charging the offense the indictment is fatally defective in three particulars.

The indictment, omitting the formal parts, charged that on the date alleged the appellant:

'did then and there unlawfully and fraudulently take ONE (1) PICK UP TRUCK over the value of $50.00 from the possession of LEONARD ALLEMAN, hereinafter called complainant, the owner thereof, without the consent of the complainant and with the intent then and there on the part of the said defendant, to deprive the said complainant of the value of the same, and with the intent to appropriate the said property to the use and benefit of him, the said defendant; . . .'

Appellant first insists that the indictment is fatally defective because the subject of the taking was not alleged to have been 'corporeal personal property' of the complainant, which words are in the statutory definition of 'theft' in Art. 1410, Vernon's Ann.P.C.

It is appellant's contention that omission of the words 'corporeal personal property' in the indictment was a failure to charge an essential element of the offense.

In the early case of Sansbury v. State, 4 Tex. Court of Appeals 99 (1878), this Court held that the failure to describe the property in a theft indictment as 'corporeal personal property' was not fatal when it was referred to in the indictment as 'property' of the owner.

In upholding the indictment the court said:

'The rule is that, 'in an indictment for an offense created by statute, though it is not in general necessary to follow the exact words of the statute descriptive of the offense, yet, where a word not in the statute is substituted for one that is, the word thus substituted must be equivalent to the word used in the statute, or (if restrictive of general words used in the same connection) of a more extensive signification than it, and include it, or it will not be sufficient.' The State v. Wapperman, (Wupperman) 13 Texas, 33. Now, the word 'property' is of more extensive signification than the words 'corporeal personal property,' and it includes the latter description of property of every character.'

See Lucero v. State, Tex.Cr.App., 502 S.W.2d 750 (1973).

It is next contended that the description of the property in the indictment as 'one (1) pick up truck' did not sufficiently describe the same as to...