Jordan v. State , 107 Tex. Crim. 414 ( 1927 )

The conviction is for misdemeanor theft, punishment fixed at a fine of ten dollars and confinement in the county jail for a period of ten days.

The motion to quash the indictment is founded upon the theory that the facts averred bring it within the terms of Art. 1346, P. C. 1925, a malicious mischief statute, and exempts it from the operation of Art. 1410, P. C. 1925, a theft statute. Art. 1346 does not repeal Art. 1410. Under Art. 1410, supra, the fraudulent taking without the owner's consent, with the intent to deprive him of its value and to appropriate it to the use of the taker, constitute the elements of the offense. In Art. 1346, the offense is committed by the malicious or wilful taking or removing without authority, of certain parts or equipment of an automobile. This statute denounces such taking or removing as a misdemeanor, although there was no attempt to appropriate the property to the benefit of the taker or to deprive the owner of its value. In the present case, the state having charged the fraudulent taking with the intent to deprive the owner of the value thereof, thereby bringing the complaint and information under the terms of Art. 1410, supra, it is obligated to prove the facts establishing the offense of theft.

Emery Sutphen was the owner of a Ford automobile. According to his testimony, about the last of November, it was burned and left along the road side, where it remained for about fifteen days. It was left there in order that an insurance adjuster might examine it.

According to the witness Chandler, a garage man, about the first of December, appellant brought to his place of business a radiator, generator and self-starter and offered them for sale. They were worth about $20.00. Appellant at first asked $25.00 and finally $13.00, and the witness agreed to buy them at the price last mentioned.

The testimony of the witnesses introduced by the appellant indicated that before the parts were finally removed, the car had remained on the road side for about a month. Appellant testified in his own behalf that he was about thirty years of age; that he observed an automobile standing by the road side; that it had been there for about two weeks; that it was stripped of its casings and some other parts. About three days later, he returned and noticed that the cylinder-head was gone, and thinking that the car was junk, removed the radiator, generator, and self-starter and took them to his home. This occurred in the day-time. He had no intention of stealing them and believed that the car had been thrown away. He later tried to sell the parts to Chandler.

Appellant takes the position that the court was in error in failing to instruct the jury that if the appellant believed the car to have been abandoned by the owner, he would not be guilty.

"Property which has been thrown away and abandoned becomes no man's property. The former owner loses his title and all claims to it and one who finds it can claim it as his own. Hence, property which has been abandoned is not the subject of larceny." (Ruling Case Law, Vol. 17, p. 36.)

"Abandonment" means an absolute relinquishment; a giving up, a total desertion. Corpus Juris, Vol. 1, p. 5. See Dikes v. Miller, 24 Tex.Crim. Rep.; Worsham v. State, 56 Tex. Crim. 253; Sikes v. State, 28 S.W. 688. Abandonment includes both the intention to abandon and the external act by which the intention is carried into effect. See Corpus Juris, Vol. 1, p. 7. When the evidence is such as to raise the issue, abandonment becomes a question for the jury. See Corpus Juris, Vol. 1, p. 12, and cases collated in note 76.

Touching the circumstances from which the jury would be authorized to infer an abandonment, there are many illustrative cases collated in Corpus Juris, Vol. 1, p. 9, note 55; also p. 7, notes 37 and 38. Many of these are civil cases involving the title to property. In the reports of the decisions of this court, we find but two in point. One of these is Sikes v. State, 28 S.W. 688, in which the opinion was written by Judge Burt. The evidence showed that two turbine water wheels had lain upon the railway right-of-way without use or interference for nine years. They belonged to one Beveridge, to whom they had been shipped from Arkansas. After remaining upon the platform of the depot for a while, the wheels were removed by Beveridge to the right-of-way. He had no intention of parting with the title to them. The station agent at Round Rock, at the request of the appellant, shipped the wheels to him at Houston. Beveridge had not taken the wheels away from the depot because his mill had been washed away and he had no immediate use for them. On this state of facts, Sikes was held guilty of theft.

In Worsham's case, 56 Tex Crim. Rep. 253, the opinion was written by Judge Ramsey and the judgment was affirmed. One of the points of attack upon the conviction was the failure of the court to charge the jury upon the issue of abandonment. The facts were these: While engaged in a game of cards with the appellant and another, one Logan executed his check in favor of the appellant for $75.00. Appellant lost in the game and delivered the check to one Perkins. Logan gave Perkins his check for $125.00, thereby redeeming the $75.00 check and getting $50.00 in money. Logan then wadded up the $75.00 check which he had thus redeemed and threw it on the floor. Worsham afterwards found it on the floor and attempted to have it cashed. The court held that there was no error in refusing to charge on the issue of abandonment.

There is no great similarity in the facts in either of these cases with those in the instant case. The principles that control are not dissimilar. Sutphen's car was disabled so that it could not be removed on its own power. He left it beside the road intending to have it inspected by an insurance agent. Some of its parts were usable and valuable and were, after the car had remained beside the road but a comparatively short time, removed by the appellant with the purpose of selling them and realizing on their value, thereby depriving the owner thereof. We fail to perceive any fact which would warrant the inference or belief on the part of the appellant that the owner of the car had parted with the title to it. He was not standing guard over it. It was not a thing that he could carry about his person. The parts which the appellant removed from it were attached to it. He had to use a monkey-wrench in detaching them. We are therefore of the opinion that the court was not in error in refusing to read to the jury the charge requested.

The judgment is affirmed.

Affirmed.

ON MOTION FOR REHEARING.