Jordan v. State ( 1927 )

Appellant urged that we were not authorized under the facts in making the statement found in our original opinion that "We fail to perceive any fact which would warrant the inference or belief on the part of the appellant that the owner of the car had parted with the title to it." We have examined more critically the evidence on this point and are led to believe that appellant is not without grounds upon which to challenge the conclusion stated.

Appellant requested the following special charge which was refused:

"You are charged as part of the law in this case that although you may believe from the evidence beyond a reasonable doubt that defendant took the property alleged in the complaint and information, yet if you further believe from the evidence that at the time defendant took said property he believed same to have been abandoned by the owner you will acquit the defendant."

Does the evidence raise the issue presented in the refused charge? The car belonged to Sutphen. Smith held some notes against the car. The car caught fire and burned on the road while Sutphen was driving it. This was on Tuesday. It was left by him on the side of the road near a creek. He reported the burning to Smith who directed Sutphen to let the car remain where it was until the insurance adjuster came. On Saturday the owner went back to the car and discovered that the cylinder-head and two pistons had already been removed. It was not claimed that appellant took them. Upon making the discovery that these things were gone no effort was made to protect the car from further dismantling, but it was still left unprotected on the road side. Sutphen himself removed the casings. The evidence from witnesses who traveled the road was to the effect that the car remained partly in the road for several days and was then pushed out of the road, and about a week later was pushed on to the bluff near the creek, and still later it was pushed in the creek. The witnesses observed parties at different times working about the car, apparently removing parts therefrom. It is not contended that appellant had anything to do with moving the car on these occasions or in taking any parts off the car save those charged in the information and complaint. Appellant testified as follows:

"I observed this car on the side of the road. I was going to see my brother one Sunday. The car had been there about two weeks then I think. The casings were not on it then. There was nothing to it much. Most everything was gone. I did not get anything then. In about three days I went back. I looked at the car and noticed that the cylinder-head was taken off and two rear wheels were gone. The radiator, generator and starter were on. It was standing on the side of the road and I thought it was junk. The next time I saw it, it was in the creek. I went home and got a wrench and took these parts. I just thought it had been thrown away and knew if it rained they would be ruined. I did not know whose it was. It had been there about ten days. I don't know how much longer. I took these parts home. Emory asked me about these parts and I told him that I had them. I got them in the day. One afternoon about three o'clock. It was about fifty steps from the public road, right out in view of people passing. I don't know who put it in the creek. I hadn't seen any one fooling with it. I did not intend to steal these parts. I saw the old car there and thought it had been thrown away."

The evidence of appellant may be looked to in connection with other testimony in the case to determine whether it raised the issue of belief on his part that the car had been abandoned. It is apparent from appellant's testimony that the car had been pretty well dismantled before he removed the radiator, generator and starter. He says the cylinder-head, all the casings, the two rear wheels and most everything else was gone, and that the car was in the creek at the time he removed the things specified, and says he knew if it rained the parts he took off would be ruined, and believing the car had been thrown away he took them with no intent to steal. Bray v. State, 41 Tex. 203, (Sup.Ct.); Neeley v. State, 8 Tex.Crim. App. 64; Forrester v. State, 69 Tex.Crim. Rep.; Branch's Ann. Tex. P. C., Sec. 47.

We have reached the conclusion that we were in error in holding that the facts do not raise the issue requiring the submission of the requested charge. The motion for rehearing is granted, the judgment of affirmance is set aside and the judgment of the trial court reversed and the cause remanded.

Reversed and remanded.