Carroll v. State , 114 Tex. Crim. 309 ( 1929 )

Daves' car was in the custody of Whiteside. On the evening of the 10th of August the car was parked on one of the streets of Terrell near the Bass Drug Company. It was missed by Whiteside about seven o'clock in the afternoon, which was a short time after it had been parked there. About twelve o'clock at night of the 10th of August the car was found by one of the officers about two blocks from the place from which it had been taken.

Daves, the owner, testified that the use of the car rendered some adjustment necessary; that the piston rings and two of the bearings were burned so as to require the replacement of the bearings; that a shortage of oil was indicated by their condition. No examination of the speedometer was made to ascertain the distance that the car had been driven.

On reflection the conclusion has been reached that the circumstances of the transaction presented an issue as to the intent with which the car was taken. From its condition at the time it was found the inference might be drawn that it had been driven a long way. Upon that hypothesis, a part of the driving had taken place in returning it to the locality from which it had been taken. It is true that appellant disclaimed the taking or the possession of the car in any particular. If the taker, whoever he may have been, took the car with no intent to appropriate it to his own use but for the purpose of driving it and returning it to the owner, the offense of theft of the car was not committed. In the books are many cases supporting the view stated. Among them is the case of Smith v. State,66 Tex. Crim. 246, in which case an automobile belonging to the owner was taken from his garage. After it had been driven for some time the car was left in an alley near the owner's house. The court stated that the facts did not show theft, though it was obvious that the parties taking the car were guilty of some offense. This conclusion is in harmony with many cases that are cited in the Smith case, supra. A number of cases are cited in Michie's Digest of Texas Criminal Cases, Vol. 5, page 22, including Lucas v. State, 33 Tex. Crim. 290,26 S.W. 213; Schultz v. State, 30 Tex. Cr. App. 94,16 S.W. 756; Taylor v. State, 50 Tex.Crim. R.; Jones v. State, 54 Tex.Crim. R.; Harris v. State, 2 Tex. Cr. App. 102; Pylee v. State, 62 Tex.Crim. R.; Clowers v. State, 88 Tex. Crim. 562.

By exceptions the sufficiency of the charge was challenged upon the ground that it failed to submit the issue of the intent of the taker of the car, suggesting that the jury should be told that if the car was not taken with the intent to permanently dispossess the owner, he would not be guilty of the offense charged. The omission from the charge pointed out by exception becomes more significant than usual in view of the court's definition of "taking." This escaped us on original consideration of the case. On the record it is believed that it was the right of the accused to have the charge of the court modified so that it would embrace in appropriate terms the distinction between the taking with intent to appropriate, and the taking with the intent to use and return.

The motion for rehearing is granted, the affirmance set aside and the judgment is now reversed and the cause remanded.

Granted, and case reversed and remanded.

ON STATE'S MOTION FOR REHEARING.