Roberts v. State

White, Presiding Judge.

The appellant in this case is charged by bill of indictment with the theft of a watch chain from the person of W. M. Feagle. The only error complained of is the court’s refusal to grant a néw trial, the motion for which is based .upon the insufficiency of the evidence to support the finding of the jury and the judgment of the court thereon.

There was no question made as to the property alleged to have been taken having passed from the manual possession of Feagle to that of the appellant, or as to the manual act by which the change was effected. The only question raised upon the facts is this: Was there in the mind of the appellant, at the time the change of manual possession was effected, an intention to deprive the owner of the value of the chain, and to appropriate it to the use or benefit of the appellant?

Otherwise stated, did the animus furandi exist at the time of the taking? We think not, and for the reasons following: It appears from the evidence that the appellant and the prosecuting witness, Feagle, had an altercation growing out of a proposed sale of some cotton seed by the former to the latter; that in its progress appellant struck Feagle a blow of the hand about that portion of the breast to which the chain was attached; that Feagle then stooped to get a stick, and that, while he was in this stooping posture, appellant ran away in the darkness towards the business part of the town of Marlin, in which town the altercation occurred. It further appears that Feagle was not apprised of his loss until a short time afterwards, when he had gone to the light; that, shortly after the difficulty, appellant visited the saloon of one Rinkelman, detailed the particulars, at the same time exhibiting the chain, and stating that he had got it from Mr. Feagle in the “scrimmage.” Appellant was shortly thereafter arrested by the city marshal, the chain being found by Rinkelman on a box in the front part of the saloon,—whether before or after appellant’s arrest, was left in some doubt by the testimony.

Opinion delivered June 5, 1886.

Applying these facts to the solution of the question propounded, the court is constrained to say that they are insufficient to support the verdict. First of all, it is to be observed that there are none of the usual marks of premeditated design surrounding the taking, it having occurred while the appellant was being ejected from the premises of the prosecuting witness; second, that the change of possession was effected by the second of two blows stricken Feagle by appellant; third, that no presumption of guilty intent can fairly be drawn from the appellant’s fleeing, the attempt of Feagle to procure a stick being an already sufficient motive to prompt flight; and, fourthly and lastly, that appellant’s subsequent exhibition of the chain and accounting for its possession, and afterwards leaving it exposed to public view, is entirely inconsistent with the guilty intent of approprition.

The charge of the learned judge who presided is a lucid and able exposition of the law as applicable to the questions raised by the facts; but because of the court’s error in overruling the motion for a new trial, the judgment must be reversed and the cause remanded.

Reversed and remanded.