Wilson v. State , 164 Tex. Crim. 233 ( 1956 )

WOODLEY, Judge.

The conviction is for the offense of theft of property of the value of $50 or over; the punishment, two years in the penitentiary.

The property alleged and proved to have been stolen was 221% pounds of dressed poultry of the value of 30 cents per pound.

The question raised by appellant is bottomed upon Arts. 1420 and 1423 P.C., the contention being that the prosecution should have been for theft of chickens under Art. 1442(b) V.A.P.C., or for theft of edible meat under Art. 1426(c) V.A.P.C.

A particular penalty different from that applicable to ordinary theft is provided in Art. 1442(b) V.A.P.C. for chicken theft, and in Art. 1426(c) V.A.P.C. for theft of “edible meat.” If, therefore, “dressed poultry” (chickens killed and prepared for cooking) is property which comes under the definition of “chickens” or of “edible meat,” as such words are used in the above statutes, appellant was entitled to be tried under the applicable statute and to have the jury charged as to the particular punishment prescribed for chicken .theft or theft of edible meat. Arts. 1420 and 1423 V.A.P.C.

Appellant’s contention that the offense was theft of chickens is answered contrary to his position in Noble v. State, 81 Texas Cr. Rep. 28, 192 S.W. 1073, and in Powe v. State, 146 Texas Cr. Rep. 346, 175 S.W. 2d 78, where it was held that to sustain a conviction for theft of a hog the evidence must show the taking of a live hog and before it became pork.

Article'1426(c) V.A.P.C. provides a punishment for theft of “any wool or mohair or edible meat.”

As used in this statute, meat refers to “the flesh of animals used as food * * * as distinguished from fish or fowl” which is one of the definitions of “meat” found in Webster’s New International Dictionary.

We conclude that prosecution for theft of dressed poultry, of the value of more than $50, under the general theft statute was proper and that the punishment for such theft is found in Article 1421 P.C.

The judgment is affirmed.