Grant v. State , 59 Tex. Crim. 123 ( 1910 )

At a former day of the present term the judgment herein was reversed and remanded. The indictment, as copied in the record and passed on in the original opinion, charged appellant with fraudulently and privately taking from the possession and person of B. Morris and so suddenly as not to allow time to make resistance before said property was carried away. In the State's motion for rehearing it is made to appear that the indictment was incorrectly copied in the transcript, and the following clause was omitted in copying the indictment: "And without the knowledge and without the consent of the said B. Morris and so suddenly as not to allow time to make resistance before said property was carried away." The case was reversed because the charge of the court was incorrect and authorized a conviction for the taking without the knowledge of Morris. As the indictment now presents the matter, the charge of the court was in accordance with the allegation of the indictment, but the question still remains that the evidence is not sufficient to support the finding of the jury. The property was not privately taken, nor was it taken without the knowledge of the injured party. The evidence in this respect is sufficiently set out in the original opinion. It shows that the property was taken with the knowledge of the injured party. As the case is now presented to the court, the motion for rehearing will be overruled, because the evidence is insufficient to support the verdict of the jury, and the facts do not sustain the allegation in the indictment submitted by the charge of the court that the property was taken without the knowledge of the injured party.

The motion for rehearing is therefore overruled.

Overruled.