Westerman v. State , 144 Tex. Crim. 101 ( 1942 )

Appellant cites us to the case of Kiser v. State,141 Tex. Crim. 530, 150 S.W.2d 257, as decisive of this cause in his contention that the trial court should have charged the jury relative to the law of circumstantial evidence. The facts in the Kiser case are not a parallel to the present facts herein. Appellant's statement, which we still call a confession, shows that he took this car unlawfully, and from the facts it is ascertainable that he only abandoned the same because the car would not run. That this was the same car lost by Mr. Morse is shown by its location as placed by appellant, and by the presence of the khaki trousers purchased from the firm mentioned by appellant and left in the car by him as shown by his statement, the presence of the trousers being shown by those who repossessed the car as well as by appellant.

We think appellant's own statement, or confession as we call it, shows him guilty of fraudulently taking a car that was stolen. Art. 1412, P. C., says:

"To constitute 'taking' it is not necessary that the property be removed any distance from the place of taking; it is sufficient that it has been in the possession of the thief, though it may not be moved out of the presence of the person deprived of it; nor is it necessary that any definite length of time shall elapse between the taking and the discovery thereof; if but a moment elapse, the offense is complete."

If this car was taken for some other reason than a permanent appropriation, there is no hint of such in the testimony; but there is sufficient testimony present to show its fraudulent taking. We can only use the testimony presented to us.

The motion is overruled.