Johnson v. State , 55 Tex. Crim. 411 ( 1909 )

In this case I respectfully enter my dissent from the conclusion reached by my Brethren in holding that this case is one of theft from the person. The record discloses that the alleged injured party went to the house of appellant and engaged with her in somewhat lascivious conduct. While on the divan his person was exposed to and fondled by her. The State's witness, the injured party, says that she had her left arm around his neck and reached over in his right pocket and took his money, amounting, to something like $800; that this money was inclosed in a pocket-book and securely fastened in his pocket by a large "safety pin." Appellant only used her right hand in getting the money, under the testimony of the prosecuting witness. He was much larger and more able bodied than was appellant. There was a struggle between them in which he resisted. This lasted a minute or longer when appellant secured the pocketbook and money. It is evident under this witness' statement that there was a struggle in which the appellant was finally successful; that with her right hand alone she was enabled to unfasten his pocket-book, as secured by the safety pin and take the money from his pocket during this struggle. It is further stated by the witness that some of the money was dropped on the floor in the room. This is from the State's side of the case. For a more detailed statement see majority opinion. Under this state of case this can not be theft from the person under our statute and the unbroken line of decisions construing that statute. The property was neither privately taken nor so suddenly as to prevent resistance. The witness testified positively that he did resist and there was a struggle. This struggle and force used places the case beyond theft from the person. In order to constitute the offense of theft from the person the legislative definition of that offense must be proved. If the evidence falls short of or goes beyond the ingredients of this offense as defined, then some other offense is shown. The question has been so often reviewed and the statement above so often confirmed with no opposing opinions, I deem it unnecessary to discuss the question further than to cite some of the cases beginning with Flynn v. State, 42 Texas Rep., 301; Jones v. State, 22 Texas Crim. App., 680; McLin v. State, 29 Texas Crim. App., 171; Roquemore v. State, 50 Tex.Crim. Rep.; Thomas v. State, 51 Tex.Crim. Rep.; Herr v. State, 52 Tex. Crim. 53. In the same connection see Files v. State,36 Tex. Crim. 206; Swartz v. State, 27 S.W. Rep., 136, and Gallagher v. State, 34 Tex.Crim. Rep.. The latter case holds that where the evidence constitutes robbery, it is not theft from the person. All the cases hold that where there is robbery or ordinary theft, the crime of theft from the person is not only not proved, but is eliminated and disproved. There are a great many other cases that could be cited in support of my dissenting views, but I have thought those enumerated above sufficient. I, therefore, am firmly of the opinion that the evidence not only does not sustain this conviction, but absolutely disproves the case of theft from the person.

I, therefore, respectfully enter my dissent and believe the judgment should be reversed and the cause remanded.