Opinion
No. 24130.
October 27, 1948.
1. — Evidence — Felony Theft — Sufficient.
In prosecution for felony theft, evidence was sufficient to sustain conviction.
2. — Evidence — Charge on Circumstantial Evidence — Not Required.
Where accused's guilt is shown by direct evidence, charge on circumstantial evidence is not required.
Theft. Appeal from District Court of Wichita County; penalty, confinement in the penitentiary for two years.
Hon. H. W. Fillmore, Judge Presiding.
Affirmed.
Guy H. McNeely, of Wichita Falls, for appellant.
Elmer H. Parish, District Attorney, Clyde Fillmore, and Alan B. Haley, Assistants District Attorney, all of Wichita Falls, and Ernest S. Goens, State's Attorney, of Austin, for the State.
Felony theft is the offense; the punishment, two years in the penitentiary.
While the owner was temporarily out of the immediate vicinity of the cash register in his place of business, appellant was seen by patrons to go behind the counter, open the cash register, take money therefrom, and flee from the building. By direct testimony, the facts show appellant to be guilty of theft.
Appellant's contention that a charge on circumstantial evidence should have been given is not well taken.
Appellant contends that there is evidence sufficient to show that the amount of money taken was less than $50.00 and that he was therefore entitled to have misdemeanor theft submitted.
According to the testimony of the injured party, $54.00 was taken from the cash register. He arrived at this amount by the following process: He placed $34.00 in the cash register when he opened for business the day of the theft; during the day he took in and, according to the cash register, put in the register $47.00; immediately after the theft, there remained in the register $27.00, evidencing a shortage of $54.00.
We fail to find any testimony showing that a less amount was taken, or that during the day there was taken from the register any amount of money by any other person. Two persons had access to the register, the owner and one employee. These persons testified, and negatived the taking by them of any money.
We are constrained to agree with the trial court that there is no testimony showing that appellant took from the register less than $50.00.
No reversible error appearing, the judgment is affirmed.
Opinion approved by the Court.