Opinion
No. 5584.
Decided October 15, 1919.
Theft — Want of Fraudulent Intent.
Where, upon appeal from a conviction of theft, the record showed that there is no evidence of a fraudulent taking of the alleged stolen property, the conviction cannot be sustained.
Appeal from the County Court of Dickens. Tried below before the Hon. Walter L. Powell, judge.
Appeal from a conviction of theft of a pistol under the value of fifty dollars; penalty, thirty days confinement in the county jail.
The opinion states the case.
B.B. Glasgow, W.D. Wilson and Stinson, Chambers Brooks, for appellant. — Cited King v. State, 4 Texas Crim. App., 256; Jones v. State, 4 id., 436.
E.A. Berry, Assistant Attorney General, for the State.
Appellant was convicted of theft of a pistol, his punishment being assessed at thirty days imprisonment in the county jail.
The facts do not sustain the conviction. The alleged owner, J.H. Latham, testified, in substance, that he was the owner of the pistol and did not give his consent to its being taken; that the pistol was in his house in a cedar chest; that he concluded he wanted the pistol for some purpose and asked his wife its whereabouts. She informed him it was in the cedar chest, and failing to find it he again asked her in regard to it and she informed him that she had turned it over to defendant with instructions for him to dispose of it. Defendant was her brother. She did not inform appellant that the pistol belonged to her husband. Mrs. Latham, the alleged owner's wife, testified that this pistol had been around the house for sometime and she wanted to get rid of it and did not want it about the premises, and one day when her brother (defendant) was at the residence she got it out of the chest and gave it to him and told him to dispose of it, and that she had not seen the pistol since until the trial; that the pistol belonged to her husband, but she did not tell her brother to whom it belonged. She said she wanted to get rid of the pistol because a party had been killed with it and she did not want it around the place. The defendant introduced no testimony.
There is no evidence of a fraudulent taking of this property. The defendant got the pistol from his sister, Mrs. Latham, at her residence. She delivered it to him with the request that he dispose of it, and gave as a reason that she did not want it about the place, and he took the pistol, and disposed of it. The elements of theft are wanting.
The judgment is reversed and the cause remanded.
Reversed and remanded.