Keenan v. State , 120 Tex. Crim. 616 ( 1932 )

The offense is theft of property under the value of $50; the punishment, a fine of $50 and confinement in the jail for ten days.

It was alleged in the complaint and information, in substance, that appellant fraudulently took from the possession of R. Y. Anderson one Kingston carburetor of the value of $9, one casting of the value of $8.50, one water pump of the value of $9.50, one magneto of the value of $10, and one gas line of the value of $1. R. Y. Anderson, the injured party, testified, in substance, as follows: At the close of the season of 1930, he left his tractor in the country. He next saw the tractor in July, 1931, and observed that certain parts had been taken from it. Among these parts were the hose of a water pump, a gas line, and a magneto. Going to appellant's home, he found the parts in a pile of junk in appellant's yard. He identified the magneto by dirt and dust in one of the bolt holes. The gas line was identified by soldering placed thereon in making repairs.

Appellant testified that he got the parts found by Mr. Anderson from an old tractor belonging to his (appellant's) brother. Witness for appellant testified to having gone with appellant to his brother's during the first part of June, 1931, and aiding him to strip the parts from the tractor. Appellant denied that he had taken any of the parts from Mr. Anderson's tractor.

The value of the parts taken from the tractor of the injured party was not proved, either directly or circumstantially. In an offense of this class the proof of value is essential. McCollum v. State, 93 Tex.Crim. Rep., 247 S.W. 283, and authorities cited. Article 1410, Penal Code, defines the offense of theft. Article 1411, Penal Code, provides: "The property must be such as has some specific value capable of being ascertained." Article 1422, Penal Code, as amended by Acts 1927, 40th Legislature, p. 232, chap. 157 (Vernon's Ann. P. C., art. 1422), provides that the "Theft of property under the value of $50 and over the value of $5 shall be punished by imprisonment in jail not exceeding two years, and by fine not exceeding $500, or by such imprisonment without fine; theft of property of the value of $5 or under shall be punished by fine not exceeding $200." An allegation as to value is not descriptive further than as it affects the question as to whether the offense be a felony or a misdemeanor punishable by imprisonment in jail and a fine, or a misdemeanor punishable by fine alone. Houston v. State, 98 Tex.Crim. Rep.,265 S.W. 585. In the present case, as far as the record reflects the matter, the property might have been valueless, or it might have had a value of $5 or under. If the value was $5 or under the punishment could not have exceeded a fine of $200. The fine assessed was $50, and, in addition, it was adjudged that appellant be confined in jail for ten days. If the property had a value of $5 or under, the punishment shown by the record herein would not have been warranted. In the absence of any proof as to the value of the property the judgment cannot be sustained.

The judgment is reversed and the cause remanded.

Reversed and remanded.

The foregoing opinion of the Commission of Appeals has been examined by the Judges of the Court of Criminal Appeals and approved by the Court.

ON MOTION FOR REHEARING.