Berry v. State

Appellant was convicted of theft from the person, and his punishment assessed at confinement in the penitentiary for a term of two years, hence this appeal.

Appellant made a motion to quash the indictment, on the ground that the money alleged to have been stolen was not sufficiently described to allow proof thereunder. The allegation in this respect is as follows: "One ten-dollar bill of lawful currency of the United States of America of the value of ten dollars, and one five-dollar bill of lawful currency of the United States of America, of the value of five dollars, — a more minute description of said bills being to the grand jurors unknown; and one leather pocketbook of the value of twenty-five cents," etc. The allegation with reference to the currency set out in the indictment, under the decisions of this court is a sufficient description of the same. Lewis v. State, 28 Texas Crim. App., 140; Oterro v. State, 30 Texas Crim. App., 450; Menear v. State, 30 Texas Crim. App., 475; Thompson v. State, 35 Tex. Crim. 511; Colter v. State, 37 Tex.Crim. Rep.; Perry v. State, 2 Texas Ct. Rep., 71; White v. State, 57 S.W. Rep., 100; Summers v. State, 76 S.W. Rep., 762. But it has been held that the allegations contained must be supported by proof that the currency described was United States treasury notes, or United States demand notes. Oterro v. State, 30 Texas Crim. App., 450; Perry v. State, 2 Texas Ct. Rep., 71. However, the decisions on this subject have not been uniform. In Kimbrough v. State, 28 Texas Crim. App., 367, it was held that United States paper currency embraces every character of paper currency issued and authorized to be issued as a medium of exchange and circulated as money under the authority of the laws of the United States, and included national bank bills or United States gold or silver certificates. And this view appears to have been followed in Dennis v. State, 74 S.W. Rep., 359, and other cases. In Summers v. State, supra, another view was taken. There it was held that the indictment charged theft of one five-dollar bill current money of the United States of the value of five dollars, only included United States treasury notes; that is, legal tender notes and demand notes of the United States. This case followed the line of decisions first above noted, and is not in harmony with Kimbrough's and Dennis' case and others. From the decisions on this subject it appears that the difficulty has been in regard to holding gold and silver certificates of the United States and national bank bills to be currency money of the United States. In order to support the view that these are not to be considered money of the United States, some nice distinctions have been drawn in construing article 866, Penal Code, as to what is meant by money thereunder. Without undertaking to discuss or criticise those opinions, we would observe that we can see no good reason why an indictment which charges theft of current money of the United States, or of currency of the United States, should not include United States gold and silver certificates and national bank bills of the United States. The payment of these, as we understand the Federal statutes, are safeguarded by law, and are in effect guaranteed by the United States government. Gold and silver certificates are issued directly by the government, predicated on gold and silver deposited in the treasury of the United States, and the government issues these directly. National bank bills are issued by the government predicated on bonds deposited by national banks with the government, which in turn delivers said bank bills to the particular national bank to which they were issued; and all these pass current as money at their face value in every State of the Union. According to the familiar principle "that things which are equal to the same thing are equal to each other," we hold that, where an indictment charges theft of bills "in the currency of the United States of America," or theft of "current money of the United States of America," giving the denomination and value thereof, the allegation can be proven by theft of United States legal tender treasury notes, or of United States demand notes, or of United States gold or silver certificates, or of national bank bills of the United States. We are not now discussing metallic coin. Of course, gold and silver coins of the United States have always been treated as money under our statutes. All cases in conflict with this opinion are hereby overruled.

We accordingly hold that in this case there was no variance between the proof introduced and the allegations in the indictment. That is, the witness Kelly testified that he was unable to say whether the $5 and $10 bills lost by him were treasury notes, national bank bills, gold or silver certificates of the United States. If they were of the denomination alleged in the indictment, and were any of the character of currency stated above, it was sufficient proof of the kind of currency alleged in the indictment.

We do not think that the evidence raised the issue insisted on by appellant, that appellant may have found the money with which he was shown to have possession. The requested charge on this subject was not required.

Nor do we believe there was sufficient testimony to require the court to charge the jury to the effect that if they believed appellant was too drunk at the time he may have taken the money to form the fraudulent intent, to acquit him. We do not understand the evidence in the case to raise this issue. The fact that appellant may have been drinking is shown, but we do not recall the testimony of any witness tending to show his drunkenness was of such a character that he was incapable of forming the criminal intent.

It was not necessary for the court to instruct the jury with reference to the theft of said money by some other person than appellant as insisted on by him. The court gave a charge on circumstantial evidence, which was requested by appellant, and this required the jury, before they could find defendant guilty, to exhaust every reasonable hypothesis consistent with his innocence; and before they could convict him they must find that the accused and no other person committed the offense charged. This covered the point urged by appellant.

Appellant complains that the court did not give his fourth special instruction, to the effect that although appellant may have been seen in possession of money before they could convict him of the theft of the money in question, the jury must believe that the money found in his possession was the identical money which was lost by prosecuting witness Kelly. We understand the charge on circumstantial evidence as well as the special requested instruction given on this subject by the court at the instance of appellant, was sufficient on this issue.

Appellant strenuously insists that the evidence is not sufficient to sustain the conviction. The evidence here was of a circumstantial character, but it occurs to us that it was sufficient under the rules laid down in regard to that character of testimony. According to the evidence appellant had no money when he met prosecutor, and ascertained that prosecutor had money, remained with him until he succeeded in making him drunk, and then left him; when prosecutor regained consciousness he had no money, and appellant thereafter was found in possession of currency money, the bills being of the same character and denomination of those lost by prosecutor. In addition to this and other circumstances of a suspicious character, appellant was seen to run his hand in prosecutor's pocket. As stated, we believe the evidence was sufficient to authorize the conviction.

There being no error in the record, the judgment is affirmed.

Affirmed.