Opinion
No. 6818.
Decided April 5, 1922.
Misdemeanor Theft — Insufficiency of the Evidence.
Where, upon trial of misdemeanor theft, the evidence failed to establish a single element of theft, the judgment must be reversed and the cause remanded.
Appeal from the County Court of McLennan. Tried below before the Honorable Giles P. Lester.
Appeal from a conviction of misdemeanor theft; penalty, a fine or $25, and one hour imprisonment in jail.
The opinion states the case.
R.O. Stotter, for appellant.
R.S. Storey, Assistant Attorney General, for the State.
Appellant was convicted in the County Court of McLennan County of misdemeanor theft, and his punishment fixed at a fine of $25 and one hour in jail.
Appellant was owner of a garage in Waco. Ed Justice worked for him. Justice decided to quit. A friend who owned an automobile came to appellant's garage with Justice to get the latter's tool box. It was taken out and placed on the running board of the car. Appellant said he wanted to look in said tool box and see if any of his tools were in there, and took the tool box from the running board of said car and carried it just inside of his garage and opened it. While he was searching through its contents Justice got in the car with his friend and went to the county attorney's office and filed a complaint against appellant for theft of said tools. Appellant found in said tool box three wrenches belonging to him. After completing his search through the tool box and removing therefrom his wrenches, said tool box was closed and placed against the wall of the garage where it remained apparently undisturbed until the day of this trial. It was brought into the court room and shown to Justice, who examined same and stated to the jury that all of his tools were in said box. We are unable to perceive the establishment of a single element of theft by this evidence. It is to be regretted that cases having so little support are permitted to come to appellate courts upon appeal.
The judgment of the trial court will be reversed and the cause remanded.
Reversed and remanded.