DocketNumber: No. 10636.
Citation Numbers: 293 S.W. 817, 106 Tex. Crim. 496
Judges: HAWKINS, JUDGE. —
Filed Date: 2/23/1927
Status: Precedential
Modified Date: 1/13/2023
Appellant renews his contention that Art. 1346, P. C. (1925) supplanted Art. 1410, P. C. (1925) in punishing one for theft of parts and automobile accessories named in Art, 1346, which reads as follows:
"Whoever shall maliciously or wilfully and without authority from the owner unlawfully remove from any motor vehicle or bicycle any portion of the running or steering gear, pump, or any tire, rim, robe, cover, tube, clock, casing, radiator, fire extinguisher, tool, lamp, starter, battery, coil, spring, gas or oil tank, bell or any signal device, speedometer, license number, horn, box, basket, trunk or carrier, shield, hood, oiler, gauge, chain or any device, emblem or monogram thereon, or any attachment, fastenings or other appurtenances or any other part attached to such vehicle which is necessary in the use or operation thereof, or whoever knowingly buys, receives or has in his possession any of said articles or any part thereof so unlawfully removed, shall be fined not exceeding one hundred dollars, or be imprisoned in jail not less than six months nor more than one year."
It is appellant's contention that one who removes from an automobile any of the parts or accessories named in said article cannot be prosecuted for theft, but that said Art. 1346 is a special statute relating to the taking of the property mentioned therein which is controlling. We are referred to Acton v. State, 104 Tex.Crim. Rep.,
Appellant further urges that the latter part of Art. 1346 making guilty one who "knowingly buys, receives or has in his possession any of said articles * * * unlawfully removed" from an automobile is inconsistent with any other idea than the fraudulent removal of them and the further purpose to deprive the owner of their value, and that this wording shows it to have been either the obvious intent of the legislature, or a necessary result, that one who might steal the property mentioned in Art. 1346 should be prosecuted for malicious mischief. We think such implication does not necessarily follow from the language used. One might "knowingly buy, receive or be in possession" of articles which were maliciously and wantonly removed from an automobile in the absence of any fraudulent intent to steal them at the time of their removal, hence no theft by the party *Page 500
removing, nor receiving of stolen property by the one who buys or receives it. We conclude that one who removes from an automobile the property enumerated in Art. 1346 with the fraudulent intent to appropriate them to his own use and to deprive the owner of the value may be prosecuted under the general theft statute (Art. 1410), and that appellant's contention to the contrary should not be sustained. Jordan v. State (No. 10372, opinion March 9, 1927). It is believed that this announcement is not in conflict with the holding in Busey v. State, 87 Tex.Crim. Rep.,
It is the duty of the court to construe the various articles of the statute in such way as will give effect to all of them if it can be done without violence to statutory construction, and an effort to do this has led us to the conclusion that there is no such conflict between Arts. 1346 and 1410 as will prevent each being operative for the protection of property designated under Art. 1346, the offense committed depending on the facts of the particular case.
Appellant's motion for rehearing is overruled.
Overruled.