Kelley v. State , 34 Tex. Crim. 412 ( 1895 )

The indictment was attacked because, in regard to the silver money alleged to have been stolen, there was no allegation of value. In this respect in was averred that "forty dollars in silver, current money of the United States of America," were taken. This was sufficient as to quantity, kind, and value of the silver money, without further allegation of value. For discussion of the subject, see Menear v. The State, 30 Texas Crim. App., 475; Otero v. the State, 30 Texas Crim. App., 450; Lewis v. The State, 28 Texas Crim. App., 140. Again, this allegation could have been treated as surplusage, for the indictment described $280 in gold accurately, and alleged its value, as well as two currency bills. The indictment was a valid one with or without the $40 in silver mentioned. But "forty dollars in silver, current money of the United States of America," sufficiently alleges the value to be $40. Same authorities. Under the evidence, Petit was an accomplice to the extent of requiring a charge upon this phase of the law. The evidence discloses: The money was taken about midnight. That on the next morning, defendant, his brother, and Petit, with quite a party, went on an excursion from the neighborhood of the theft to San Antonio. When near Seguin, defendant and brother were arrested for this theft, and, while the brother was being searched, defendant handed a sack of money to Petit, who carried it to the rear of the car, and gave it to one Sims to keep. That the officer accused Petit of taking this money and carrying it away, which was denied by him. That the officer searched him, found a five-dollar bill in his shoe, and he then admitted his connection with the matter, and carried the officer to Sims, who gave up the money. That it was returned to the owner, who recognized and identified the sack, and claimed the money recovered, which consisted of two twenty-dollar bills and $8 in silver. These facts are not disputed. Petit knew that defendant was arrested for this theft when he received the sack of money from him. He at once carried it away, evidently for the purpose of concealing it, and was therefore guilty of receiving and concealing stolen property, knowing it to be stolen. The circumstance of the hidden five-dollar bill, taken from his shoe, if part of the original theft, or proceeds from an exchange of some of the original money, would show, or tend to do so, that Petit was fully aware of the theft before the officer made the arrest, and therefore a receiver of the stolen property from this standpoint. His conduct in this matter can not be explained satisfactorily upon any theory of innocence, and no explanation of this conduct was offered. As the matter stood, a charge upon the law of accomplice testimony should have been given, and, though specially requested by the accused, was refused. The ruling of the court refusing the continuance is not discussed. This question can not arise, as here presented, on a future trial.

The judgment is reversed, and the cause remanded.

Reversed and remanded.

Judges all present and concurring.