Files v. State , 36 Tex. Crim. 206 ( 1896 )

Appellant was convicted of theft of property from the person, and given two years in the penitentiary, and prosecutes this appeal. The substantial Facts as to the act of taking are stated by the State's Witness, W.R. Ward, who testified as follows: "That witness, defendant, and a number of others bad been drinking together in the city of Hillsboro; that about 8 o'clock at night be started to go borne. Defendant took hold of one of his arms, and put the other around his waist and said to him, 'Here, you don't know where you are going,' and led him out of the back lot, where they were, into an alley; and when they were about sixteen steps down the alley the defendant put his hands into his pocket, and took his pocketbook, which contained two $5-bills, and two 1-cent copper pieces. These bills were United States currency money. It was my money. I did not know when the defendant put his hand in my pocket, but I felt him as he was pulling my pocketbook out of my pocket, and said to the defendant, 'Never mind about that; I can attend to that.' I made no resistance, because I saw other negroes around, and was afraid to say anything," etc. On this state of facts, upon this point the court charged the jury as follows: "If you believe from the evidence said Ward knew when he (defendant) put his hand in his (Ward's) pocket, and took said Ward's pocketbook into his (defendant's) hand, then you will acquit him. If the defendant had the pocketbook in his band before Ward knew it, the subsequent discovery of the fact by Ward would make no difference; and the defendant could nevertheless be guilty; but unless you should find from the evidence beyond a reasonable doubt that the defendant did have said pocketbook in his hand before Ward knew it, you should acquit the defendant." Appellant excepted to this charge of the court on the ground that it was a charge upon the weight of evidence, and assumed as a fact that the defendant put his hand in Ward's pocket without Ward's knowledge, and that Ward subsequently discovered it. We have examined the charge in question, and it occurs to us that it pertinently presents the issue in the case upon the very point of taking. The allegation in the indictment is that the property was privately taken from the person of said Ward. To sustain this allegation it was necessary for the State to prove that the defendant privately, without the knowledge of the prosecutor, slipped his hand into his pocket, and secured in his hand the pocketbook containing his money. Further asportation was not necessary. If, however, the prosecutor knew that the defendant was attempting to privately slip his band in his pocket, before be had secured the purse, and be submitted to the same without resistance, then it would not have boon theft, under the allegations of the indictment. Both phases of the case upon this point were presented to the jury in a clear and succinct manner, and the charge of the court is not obnoxious to the criticism made by the appellant as being upon the weight of the evidence. See, McLin v. State, 29 Tex.Crim. App., 171; Green v. State, 28 Tex.Crim. App., 493; Flynn v. State, 42 Tex. 301. Appellant also excepted to the remarks of counsel for the State when addressing the jury. As soon as the court's attention was called to this, be reprimanded counsel, and instructed the jury to disregard the same. In this there was no error. The judgment is affirmed.

Affirmed.