Williams v. State , 102 Tex. Crim. 588 ( 1925 )

Appellant was convicted in the District Court of Rockwall County of felony theft, and his punishment fixed at three years in the penitentiary.

The indictment charged theft of 78 chickens. The owner swore to the loss of 89 chickens on the night of the alleged theft, and said they were taken from his chicken house in Rockwall County. Forty of said stolen birds were recovered the next day in Dallas in a produce house, and an employe of the house said he had been dressing chickens out of the same load brought in that morning and had dressed a number with bands on their wings, etc. Proof of the finding of the accused in possession of part of the property alleged to have been stolen, will support a conviction for taking the whole. Berry v. State, 223 S.W. Rep. 213. The proof showing the loss of 89 chickens the same night, and that appellant was in possession of a load of chickens the next morning, 40 of which were identified and a number of which had already been dressed and identification made impossible, would seem sufficient to support a conviction for taking the entire number so lost. The allegation in the indictment being of the taking of 78 chickens, proof of loss embracing 89 chickens would seem to dispose of the contention of appellant that the State, having alleged the value in the aggregate, could only sustain same by proof of the taking of all of the property mentioned.

No exceptions appear to any evidence upon the trial, and none are in the record save those taken to the court's charge, and to the refusal of a peremptory instruction of not guilty. The court seems to have changed his charge as originally prepared, or to have given special charges, to meet the exceptions presented thereto, and the refusal of the requested peremptory charge was not erroneous.

We are not in accord with the complaint directed at the failure to prove the market value. The owner of the chickens testified that there was a market value for pedigreed chickens, such as his, in Rockwall County, and that it was $10.00 each. The proof showing that 20 of such pedigreed chickens were taken, would suffice to make the offense a felony.

Finding no error in the record, the judgment will be affirmed.

Affirmed.

ON MOTION FOR REHEARING.