Holland v. State , 87 Tex. Crim. 89 ( 1919 )

Appellant was charged with the theft of a watch belonging to one Willie Beard, the same being of the value of $20; it being alleged that said watch was taken from the possession of said Beard, in Bexar County, Texas, on December 25, 1918.

It appears from the exceedingly brief statement of facts that appellant was janitor of the Gunter office building, in San Antonio, in room 230 of which building the alleged owner had his office.

On the trial, appellant testified that about the date in question, he found a powder or perfume box in the hallway on the second floor of said building; that on investigation he found that said box contained a watch, which he put on his chain and in his pocket, and which is the watch in question; that he made no report of finding said watch to the manager of the building, and made no effort to find the owner thereof; that he intended to keep the watch unless some one made claim of it; and that he wore the watch until arrested on February 16, 1919. It appears that on that day appellant went into the office of said Beard, pulled the watch out of his pocket, and compared its time with that of a clock on the wall. Beard saw the watch and recognized it as his own, and said to appellant: "Let me look at your watch, Ed." Appellant handed the watch to Beard, who looked at it, and returned it to appellant, who put it back into his pocket and went on out. Later in the day the officers went to appellant and approached him about the watch, which he pulled out of his pocket with the statement that he found it on the second floor of the Gunter Building, in front of the elevator.

The case was tried before the court without the interposition of a jury.

It is contended by the appellant here that the allegation of possession in Beard is not sustained by the proof, and that it is not shown that appellant intended to appropriate the property in such manner as to make his taking, theft. We think the evidence sufficiently shows that if it be admitted that the property was found in the hallway, and on the same floor of said building as that on which the office of Mr. Beard was situated, that the same would be in his constructive possession, which is sufficient to meet the demands of the law of theft. Robinson v. State,11 Tex. Crim. 407. Property that has been mislaid or misplaced or lost, is in the constructive possession of the owner until that possession has been interfered with by the assertion of some care, management, and control thereof by another person.

It is also made to appear, as stated, that in spite of his position as caretaker and janitor of said building, which would seem to impose upon appellant the duty or obligation to at least report the finding of property in the building to those who had charge of its management, that no such report was made, and no inquiry set on foot of any one of the occupants of the building.

We further observe that when appellant was charged with the ownership of the watch, by the question and request of Br. Beard, above quoted, that he made no explanation or denial that the watch was his. He also admits that if no one had made any claim upon the watch, he intended to keep it. It is difficult for us to see how any claim could be expected by him for a watch which he carried in his pocket. We think the facts in this case very similar to those in the Rochell case, 55 Tex.Crim. Rep., which was affirmed by this Court. We cannot agree with the contention made by counsel for appellant, and finding no error in the record, the judgment of the trial court will be affirmed.

Affirmed.

ON REHEARING. March 10, 1920.