Wright v. State

• Decision Date: 19 February 1896
• Citation: 34 S.W. 273
• Parties: WRIGHT v. STATE.
• Court: Texas Court of Criminal Appeals

34 S.W. 273

WRIGHT v. STATE.

Court of Criminal Appeals of Texas.

February 19, 1896.

Appeal from district court, Bexar county; Robert B. Green, Judge.

Arthur Wright was convicted of larceny, and appeals. Reversed.

Mann Trice, for the State.

HURT, P. J.

The appellant was tried under an indictment charging him with theft of personal property over the value of $50, was convicted, and his punishment assessed at confinement in the state penitentiary for a term of two years; and from the judgment and sentence of the lower court he prosecutes this appeal.

The appellant took a number of exceptions to the charge of the court, but we will only consider those which are deemed material. The court gave, in charge to the jury, as to the ownership and possession of alleged stolen jewelry, a charge only as to the ownership and possession in Mrs. L. G. Hamilton. Appellant insists that the proof showed that May Hamilton was in actual possession of said property, and that, at least, a charge should have been given submitting to the jury this phase of the case. The record discloses that the property in question, being jewelry, was taken from the residence of Mrs. L. G. Hamilton, and that May Hamilton was her daughter, a minor 17 years of age; that it was kept in a box, in the wardrobe of said Mrs. Hamilton; that the box was May's, and she kept the key to it, and took care of the jewelry. May had access to the jewelry at all times, and the diamond cluster ring, which was the only property recovered, Mrs. Hamilton had given to her daughter May. The wardrobe in which the jewelry box was kept was in the control of Mrs. Hamilton, who kept the key to it. Under the authorities in this state, as we understand them, ordinarily, a minor, living with its parent, could not be considered as having exclusive care, management, and control of property, such as jewels given to him by the parent, but is merely the custodian; and in such case it is only necessary to charge the ownership in the parent. See Bailey v. State, 18 Tex. App. 426; Frazier v. State, Id. 435; Clark v. State, 23 Tex. App. 612, 5 S. W. 178. On this subject, Mr. Bishop says: "The clothing of a minor child may generally, and it is believed always, be laid as a minor's; since, it apparel be put upon a boy, this is a gift in the law, for the boy had the capacity to take it. Still, in most circumstances, it may equally well be charged to be the father's, though the other is the common and safer way; and in some case...