Kitchen v. State , 124 Tex. Crim. 358 ( 1931 )

LATTIMORE, Judge.

Conviction for misdemeanor theft; punishment, a fine of $100.00, and thirty days in the county jail.

We find in the record no statement of facts. Contention is made that the court erred in refusing to quash the complaint and information because same do not anywhere allege that the taking of the property in question was without the consent of the Magnolia Petroleum Company. As far as the exact question is concerned, we note that the complaint and information charge the taking of property which belonged to the Magnolia Petroleum Company, but was then and there in the possession of one Westerman, who held same for said company, and that the taking was without the consent of the said Westerman or any one for the company, etc. If there was any question as to the necessity for an allegation of the want of consent of the company, we think same would sufficiently appear from the above. As we view this case, however, it being alleged that the property was being held in possession by Westerman, and that it was taken without his consent, etc., this rendered unnecessary any further allegation with regard to the lack of consent. In Osborne v. State, 93 Texas Crim. Rep., 54, and in Frazier v. State, 18 Texas App., 434, which is referred to and discussed at length in the Osborne case, supra, and in many other authorities, it is laid down as sufficient, in a theft case, to allege the ownership in the special owner who had the actual care, control, and management of the property at the time, and to allege want of consent on the part of said special owner.

Complaint is made in another bill of exception because of the refusal of the court to postpone the case, the ground of the request being the absence of appellant’s counsel, but we learn from the record aliunde that they appear to have been present and to have represented appellant upon the trial.

Finding firmed. no error in the record, the judgment will be af-

Affirmed.