McCain v. State , 143 Tex. Crim. 521 ( 1942 )

In his motion for rehearing appellant earnestly insists that the trial court, in his charge to the jury, committed fundamental error. We are unable to agree with this contention. The charge, as we construe it, means that if appellant obtained possession of the horse of William Lee by means of any false pretext, or if he obtained possession of the horse from the wife of William Lee by a false pretext of borrowing it, but at the time he obtained such possession, he, the said Hubert McCain, had the fraudulent intent to deprive the said William Lee of the value thereof and to appropriate it to his own use and benefit and did so appropriate it, then, in either event, he would be guilty. We find that the court had theretofore defined theft in accordance with the terms of Article 1413, P. C. However, if appellant desired a more specific and explicit instruction on the first phase of the law in said paragraph, he should have made an objection to the court's charge as required by Article 658, C. C. P. In the absence of any objection, the charge is deemed sufficient, especially when it is construed as a whole, which we are required to do.

Appellant, for the first time in his motion for rehearing, asserts that the court's charge relative to his defensive theory is insufficient to properly present the same to the jury. If he deemed the charge insufficient, he should have complied with Article 658, C. C. P., and addressed an objection thereto specifically pointing out to the court wherein the same was deficient, in the absence of which we are not authorized to review the same.

Appellant also renews his complaint relative to the insufficiency of the evidence to sustain his conviction. This question was decided by this court adversely to appellant's contention, and we see no good reason for receding from our conclusion as expressed in the original opinion.

The motion for rehearing is overruled.

The foregoing opinion of the Commission of Appeals has been examined by the Judges of the Court of Criminal Appeals and approved by the Court.