Flynn v. State

This case was affirmed at the Austin term, and is now before us on motion for rehearing. It is insisted that the property was delivered by the prosecutor voluntarily, and that there being no taking such as the law contemplates, this could not be theft. It occurs to us that the evidence sufficiently shows a pretext devised by appellant to induce the prosecutor to part with his money. Prosecutor was drunk and was induced by appellant to send for more beer, and he thus obtained possession of prosecutor's money under pretext of changing it, when he would appropriate the money, not giving back any change. Besides, article 861, Penal Code, makes a conversion of the property, where one obtains it for the purpose of appropriating it to his own use, theft, regardless of any pretense. Rice, Crim. Ev., p. 736.

Appellant further insists, and strenuously urges before this court, that the evidence does not show a taking of a sufficient amount of money at any one time to constitute this a felony. This question is considered in the original opinion, to which reference is made in this connection. The proof shows that prosecutor had $85 when he went across the street with appellant to Jennie Fuller's; that he remained there an hour or an hour and a half, during which time there was taken from him $80, for when he left the house and came to himself from the effects of the "doping" by appellant, he had only $5, when he is shown to have $85 when he went there. So that, during an hour and a half he was induced by appellant to hand him $80 during two or three occasions to buy beer, which money was not returned. The record informs us that on the first occasion appellant got only $10, and afterward a roll of bills was handed appellant by prosecutor. How many is not distinctly shown, but it is shown that no change was returned. There may have been one other occasion when money was handed by prosecutor to appellant to change in order to pay for beer, in which he appropriated the money, but this is not made clear. So that there was evidence before the jury of an appropriation of $70 at one time.

However, in our opinion, it is not necessary to rest this decision on that proposition; inasmuch as the evidence shows to our minds that the transaction in which the money was taken was a continuous one. Appellant evidently designed when he went over to Jennie Fuller's to obtain from prosecutor his money, and to appropriate it to his own use. He proposed to do this by "short-changing" prosecutor, as appellant himself terms it. During the space of an hour or an hour and a half, in one, two, or three transactions, in sending for beer and obtaining money from prosecutor, he is shown to have obtained from him as much as $80, and to have appropriated it to his own use. Of this amount he gave Jennie Fuller $20. This, under the authorities, would constitute a continuous transaction. Cody v. State,31 Tex. Crim. 183, and authorities there referred to; White v. State, 33 Tex. Crim. 94; Barnes v. State, 3 Texas Ct. Rep., 584. It appears to us that the illustrations given in the first named case indicate the character of this offense, and that it was a continuous offense. One illustration given is, where one drives at night a wagon to the fence, and carries cotton from a pile in the field to his wagon, thirty yards away, fills it and drives away. The taking of this cotton, though by successive baskets full, was held to be theft of the whole. Although there were different acts, still they were continuous, and the whole transaction was instigated by one impulse and purpose. Again, where one breaks into a store at night and carries out by successive trips as much goods as he wished, the amount taken in the aggregate is the amount stolen, and if this is sufficient to constitute a felony, the offense is a felony. Harris v. State, 29 Texas Crim. App., 101. Here there was one design, one impulse, one purpose on the part of appellant. He knew prosecutor had a considerable amount of money. He knew he was drunk. He went with him to a house of a prostitute (Jennie Fuller) and there induced him to buy beer, and during an hour or an hour and a half, by successive orders, he induced prosecutor to hand him $80, which he appropriated. This, in our opinion, was such a continuous act as to constitute it one theft. The motion for rehearing is accordingly overruled.

Motion for rehearing overruled.