Green v. State , 144 Tex. Crim. 221 ( 1942 )

The offense is theft of an automobile over the value of $50.00. The punishment assessed is confinement in the State penitentiary for a term of two years.

Appellant first complains of the action of the trial court in overruling his motion to quash the indictment on the alleged ground that said indictment was voted and returned by a grand jury composed of thirteen members. This bill is qualified by the trial court who states in his qualification that before the grand jury was completed and charged, it was made known to the court that Cecil Jones, who had been summoned as a prospective grand juror, resided in Hartley County and not in Dallam County, whereupon he (Jones) was discharged and another member was called to take his place in the jury box with eleven others; that then the entire twelve men were resworn as a grand jury; that at no time was there a grand jury of thirteen members. Appellant accepted the bill with the qualification thereof and is bound thereby. The bill, as thus qualified, fails to reflect error.

Appellant's next contention is that the evidence is wholly insufficient to support his conviction. It was the State's theory, finding support in the evidence, that appellant took the automobile in question without the consent of Harvey Hibler, who was the special owner thereof, while it was parked in front of the Royal Cafe in the town of Dalhart, and drove it to Olney, in Young County, a distance of about 350 miles, where he was subsequently apprehended and brought back to Dalhart. It was the defendant's theory, also finding support in the evidence introduced by him, that on the night in question, Luther Devers wanted to go to Olney to bring his mother back to Dalhart; that he (appellant) agreed to take Devers and his wife to Olney for that purpose; that Devers agreed to pay for the oil and gasoline consumed in making the trip; that appellant carried Roy Reeves and Mr. and Mrs. Devers to Olney, where he was arrested about two days later. It was further shown that on the night in question, appellant claimed that the car belonged to him. However, on the trial he testified that he had borrowed it from Hibler; that at no time did he have any intention of stealing it.

It will be noted from the foregoing brief statement of the material evidence introduced upon the trial that a highly controverted issue was raised and that this issue was fairly submitted by the court to the jury who decided it adversely to the appellant, and we would not be justified in holding that there is no evidence upon which the jury could base their verdict. Hence we overrule this contention.

Appellant addressed seven objections to the court's main charge and requested eight special charges. The court submitted four of the special charges to the jury but declined to give the remaining four which ruling, in our opinion, was eminently correct. The court's charge, together with the requested charges, fairly and adequately applied the law to the facts most favorably to the appellant's contention. Appellant contends however, that he was entitled to an instruction on circumstantial evidence. With this contention we are unable to agree. There is no question about appellant taking the car and driving it to Olney. He admitted this much. The only controverted issue is the intent with which he took it. It seems to be a fairly well settled rule in this State that where there is direct and positive evidence that the accused took the property in question and that his fraudulent intent is to be inferred from the main facts proven, there is no necessity for a charge on circumstantial evidence, because the case, in a legal sense, does not rest wholly upon circumstantial evidence. See Rundell v. State, 90 Tex.Crim. R.; Roberts v. State,44 Tex. Crim. 267; Flagg v. State, 51 Tex.Crim. R..

It seems from the record that upon the trial of his case appellant was represented by able counsel who secured for him every legal right to which he was entitled.

Finding no reversible error in the record, the judgment of the trial court is in all things affirmed.

The foregoing opinion of the Commission of Appeals has been examined by the Judges of the Court of Criminal Appeals and approved by the Court.

ON MOTION FOR REHEARING.