Gardner v. State , 128 Tex. Crim. 393 ( 1935 )

ON MOTION FOR REHEARING.

LATTIMORE, Judge.

The order made in this case on Wednesday, April 3, 1935, is withdrawn and the following opinion substituted.

The granting of a rehearing is urged on the ground that there is a variance between the pleading and the proof in that appellant is charged with theft, and insists that the case made by the proof is of theft from the person. Many cases decided by this court hold that if such be the case there should be a reversal. Such is not the case here.

No witness swore that appellant took the money from the person of Scott without his knowledge, or so suddenly as not to allow time for resistance. All Scott knew was that when he went into the woman’s house he had the money in a pocket in the vest part of his overalls. He said this pocket was buttoned, and after engaging in sexual intercourse with the women he missed his money. He would not swear that she unbuttoned his pocket. In fact he said he did not feel her unbutton it, and did not know when or how he lost the money. All he knew was that is was gone, and when he charged her, she threw it to another woman. So far as we know from this record, the pocket may have become unbuttoned and the money fallen out. As far as the record shows appellant tried the case as one of ordinary theft. It was so submitted to the jury, and there were no exceptions to the charge. No special charge was asked telling the jury that if they found it a case of theft from the person, they should acquit. The evidence fully establishes a case of theft. If appellant wished to have the jury told that in case they found that the money was taken from Scott’s person, they should acquit, she should have asked a special instruction to that effect, but she did not do so. We would be in rather a peculiar attitude should we assume that because there are some indications in the facts before us that might suggest the possibility of a conviction for a different offense, that we should send the case back to the court a quo when the evidence fully supports the judgment.

The motion for rehearing is overruled.

Overruled.