Shaw v. State , 23 Tex. Ct. App. 493 ( 1887 )

ON REHEARING.

White, Presiding Judge.

At a former day of the present term, we affirmed the judgment of the court below convicting this appellant of theft from the person, and assessing his penalty at three years in the penitentiary. His motion for a rehearing, which is supplemented by an able brief and argument of his counsel, presents three questions for adjudication, and upon which it is insisted the judgment is erroneous and should be reversed. First, it is contended that the indictment is invalid, because it does not allege the value of the property, or that the property had any value; secondly, that the evidence does not show the value of the property or establish for it any value whatsoever; and, third, that the evidence is insufficient and fails to show a fraudulent intent on the part of defendant in taking the property, but, on the contrary, shows an innocent intent and innocent mistake on his part.

As to the indictment, it charged, in substance, that appellant fraudulently and privately took from the possession and person of Della Fry, to wit, one certain gold finger ring, without her consent, and so suddenly as not to allow time to make resistance before the same was carried away, with intent to deprive Della Fry of the value of said ring, and to appropriate the same to his own use, etc. As defined in Articles 744 and 745 of the Penal Code, the offense is sufficiently charged in the indictment, and the indictment follows the approved forms and precedents. (See Willson’s Crim. Forms, No. 472, p. 206.)

In the offense of privately stealing from the person of another, the value of the property has nothing to do with the ascertainment of the punishment, as is the case with ordinary theft of property, where the punishment, and also the fact as to whether it is a felony or a misdemeanor, are made to depend upon whether the value amounts to twenty dollars or is under that value. (Penal Code, arts. 735 and 736.) On the contrary, in theft from the person, no matter what may be the value of the stolen property, there is but one punishment, viz,, confinement in the penitentiary not less than two nor more than seven years. (Penal Code, art. 744.)

It is only in cases where the character of the offense, and its punishment, are made dependent upon the value of the property stolen that it is necessary for the indictment to allege the value, and for the proof to establish it. (Bish. on Stat. Crimes, sec. 427; 1 Bish. Crim. Proc., secs. 541 and 567.) We have a statute which expressly provides that “theft of certain particular kinds of property, as of ahorse, property wrecked” (etc.), have a punishment affixed differing from the general punishment of the crime of theft; whenever, therefore, the law provides a particular punishment for theft committed in regard to a special kind of property, “theft of such property is not included within the law affixing the general penalty to the offense,” etc. (Penal Code, art. 734.) Thus it will be seen that where the penalty is certainly affixed, either on account of the kind of property or the manner of the theft, value is a non-essential and forms no part of the offense. In all such cases it is neither essential to allege or prove the value, because value is not an ingredient of the crime. In ordinary theft the rule is that “the property must be such as has some specific value capable of being ascertained” (Penal Code, art. 725); and this value must be alleged and proven because the punishment is made to depend upon it.

Opinion delivered June 8, 1887.

As to the value of the “gold ring” alleged to have been stolen, we are of opinion it was neither necessary to allege nor prove the same, and consequently that both the indictment and the evidence as to this matter are sufficient. (Bish. Stat. Crimes, 2 ed., sec. 427; 1 Bish. Crim. Proc., secs, 541 and 567.)

As to evidence of a fraudulent intent on the part of defendant, it is urgently insisted by counsel that the testimony discloses that the defendant, when he took the ring from Miss Fry’s finger, did so through a mistake, thinking he was taking it from the finger of Miss Minnie Jones, a friend of his, upon whom he intended perpetrating only a joke. Unfortunately for this theory, Miss Fry says the defendant had tried once before, during the dance that evening, to snatch the ring from her finger, and failed; and, furthermore, the evidence fails to show that Miss Minnie Jones was the possessor of a gold ring which she was wearing and disporting upon her finger on that occasion, and her own testimony contradicts this theory. Most assuredly the appellant, if his intentions were honorable, should have corrected the mistake, if mistake it was, when the matter was discussed and search was being made for the ring in his immediate presence and hearing, to say nothing of his subsequent conduct in failing to return it to the owner afterwards. We are of opinion that the evidence is amply sufficient to sustain the verdict and judgment.

The motion for rehearing is overruled.

Motion overruled.