Perry v. State

Appellant was convicted of theft of money under the value of $50, and his punishment assessed at imprisonment in the county jail for sixty days, and he prosecutes this appeal.

Appellant assigns as error a variance between the proof and the allegations as to the description of the money in the information. The information describes the property as "twenty-nine dollars, same being lawful money of the United States of America of the value of twenty-nine dollars." The proof showed four five-dollar bills, silver certificates or national bank notes, and seven one-dollar bills, silver certificates, and one two-dollar bill, also described by the witness as a silver certificate. It has been held in a number of decisions that the allegation "lawful money of the United States" means coin or treasury notes made legal tender by the act of Congress. We are not advised of any case holding that under our statute with reference to theft of money national bank bills or silver certificates are regarded as money. See Otero v. State, 30 Texas Crim. App., 450; Menear v. State, Id., 475; Dukes v. State, 22 Texas Crim. App., 192; Thompson v. State, 35 Tex. Crim. 511; Warren v. State, 29 Tex. 369; Wofford v. State, 29 Texas Crim. App., 536. In our opinion, there was a variance between the allegations in the information and the proof offered. It occurs to us it would have been a very easy matter for the pleader, in drawing the information, to have described the money more fully. The character of bills could have been set forth, and the number and denominations of same. When this is practicable, is should always be done; and, when not, there should be an allegation in the information giving an excuse for the want of this particularity of allegation.

Appellant objected to his alleged confession introduced in evidence by the State through the witness Martin Clark, on the ground that he had not been warned by Clark. However, the bill shows that he had been warned by the city marshal, Cole, on the day previous. The warning, though, was not in accordance with the statute. He was told by the officer that anything he stated "could be used against him or for him." In Barth v. State, 39 Texas Criminal Reports, 381, it was held that the confession need not be made to the party giving the warning, but it must be within such reasonable time thereafter as to indicate defendant remembered and was impressed with the warning given, and made the confession under it, comprehending its legal effect, to wit, that it could be used against him. The warning given here was sufficiently near in point of time, but, appellant being a mere boy, it occurs to us the warning should have been repeated, so as to have put him on guard with reference to his rights. More than this, the warning was not in accordance with the law. Guinn v. State, 39 Tex.Crim. Rep.; Unsell v. State, 39 Tex. Crim. 330.

We also think the testimony given by Clark as to what Claud Maddox told him was clearly hearsay. It is not necessary to notice other assignments. The judgment is reversed, and the cause remanded.

Reversed and remanded.