Young v. State

• Decision Date: 01 May 1940
• Docket Number: No. 21029.,21029.
• Citation: 141 S.W.2d 315
• Parties: YOUNG v. STATE.
• Court: Texas Court of Criminal Appeals

141 S.W.2d 315

YOUNG v. STATE.

No. 21029.

Court of Criminal Appeals of Texas.

May 1, 1940.

Rehearing Denied June 19, 1940.

Commissioners' Decision.

Appeal from Coryell County Court; Floyd Zeigler, Judge.

Walter Young was convicted of stealing property under the value of $5, and he appeals.

Affirmed.

Harry W. Flentge, of Gatesville, for appellant.

Lloyd W. Davidson, State's Atty., of Austin, for the State.

KRUEGER, Judge.

The offense is theft of property under the value of $5. The punishment assessed is a fine of $75.

Appellant first complains of the court's action in overruling his motion to quash the complaint and information on the ground that it does not give a definite description of the kind and quality of the tire alleged to have been stolen, nor does it give the factory number.

We note that the complaint and information charges that on or about the 19th day of December, 1938, Walter Young, in the County of Coryell and State of Texas, did then and there unlawfully and fraudulently take one automobile tire of the value of $3.50, the same being the corporeal personal property of Kirby Hanes, without the consent, etc. We deem the description of the property sufficient. If he had been charged with stealing one suit of clothes, or one hat, it is our opinion that it would not be seriously contended that a more particular description of the property by collar size, etc., was necessary. This case is not like that of Scott v. State, 125 Tex.Cr.R. 396, 67 S.W.2d 1040. In that case, the property was merely described as "certain lubricating oil" without any averment as to the amount, quality or kind.

Appellant next challenges the sufficiency of the evidence to justify and sustain his conviction.

The State's testimony shows that some one, without the knowledge or consent of Hanes, the owner, took a tire from his tractor. Hanes, who had written the serial number of his tire on a piece of paper and preserved it, later found that tire on a wheel of appellant's automobile. On the trial appellant admitted taking the tire but testified that he thought he had Hanes' permission to do so. Bill of Exception No. 1 shows that on cross-examination he was asked if he did not state to the officers, in the presence of Hanes, when his possession of the tire was first questioned, that he had purchased it in Waco. He admitted making such statement. He said, however, that things got so "messed up" that he did not know what to say. Appellant objected to said testimony on the ground that he was under arrest at the time, or at least thought that he was, and not having been warned as required by law, the State should not, on cross-examination of him, have elicited such statement. We are not in accord with his contention. The facts show that his statement to the officers was made contemporaneously with his arrest, if he was under arrest, at a time when his possession of the stolen property was first questioned. Hence, the same was admissible under the holding of this court in the case of Murrell v. State, 137 Tex.Cr.R. 92, 127 S.W.2d 896, and authorities there cited. See also Black v. State, 111 Tex.Cr.R. 372, 13 S.W.2d 100.

By Bill of Exception No. 2 appellant complains of the following testimony of the sheriff and his deputy: "While we were looking at the tire Mr. Young came up and said he bought the tire in Waco. Walter Young said he got it over at Waco on Elm Street; he had forgotten the name of the place, and I said: `Well, get in my car and we will be over there in just a little while.'"

The deputy testified in substance to the same statement. Appellant objected to this statement on the ground that he was under arrest at the time; that the statement was not reduced to writing and signed by him, nor had he been warned as required by Art. 727, C.C.P. We are of the opinion that this statement was made when appellant was found in possession of the stolen property and his possession of it was first being questioned, and therefore comes within the rule announced in the case of Murrell v. State, supra. Whether or not appellant was under arrest was a disputed fact. If appellant was under the impression that he was under arrest he must have reached such a conclusion from both guilty knowledge and the presence of the officers. The mere presence of the officers alone would hardly cause an innocent man to believe that he was then and there under arrest. However, what we have heretofore said disposes of the question.

Appellant in his able brief has cited us to a number of authorities upon which he relies as...