State v. Stephens , 32 Tex. 155 ( 1869 )

Lindsay, J.

We do not perceive any good and valid reason for sustaining the motion to quash the indictment in this ease. It is made apparent that it contains the distinct allegation of the theft of his own property by the defendant. It was such a “fraudulent taking” of his own property, from the rightful possession of'another, as was contemplated by the fourth subdivision of Art. 2388, Paschal’s Digest. The charge is, that one William IT. Pate held possession of, by virtue of his lien for repairs, a watch, the property of the defendant; and that the defendant fraudulently took it, without the consent of the said Pate, to deprive him of the value of said repairs (by depriving him of the said watch), and to appropriate it (the value of the repairs) to his (the said defendant’s) use. The allegation of the amount of the value of either the watch or of the repairs, is an immaterial matter, except that some -value must be affixed to the thing alleged to be stolen. All these matters are substantially alleged in the indictment. And the mere fact that the repahs are made of co-equal value with the watch— the thing actually stolen—does not vitiate the other substantive allegations in the indictment. The indictment possesses all the requisites deemed necessary by Art. 2363, of the Criminal Code, Paschal’s Digest. The allegation of the value of repairs was wholly unnecessary, and is mere surplusage. Theft is the predicate of the watch, and not of the repairs ; and the bailee, or special owner, was only to be deprived of the value of the repairs by the theft of the 'watch. A general charge, alleging time and place, that the owner of a watch of any designated value, rightfully in the possession of a bailee, and held by him as a security for -work and labor bestowed upon it, had fraudulently taken it, without the consent of the bailee, from his possession, with the intent of depriving him of the value of such repairs, would be entirely sufficient in this species of theft. The repairs imply a value. Repairs are alleged, bio value of repairs need be alleged. Repairs de se are not the subject of theft. They are only an accretion of value to a thing which may be the subject of theft. It is but a question of fact to be proved on the trial that the repairs were made, in order to show that the bailee had an interest in the thing so fraudulently taken. When all this is charged and established by proof, a case is made out of theft by the owner of his own property.

The court ought to have overruled the motion to quash. The case is reversed and remanded.

Reversed and remanded.