Hoovel v. State

Appellant urges that the proof shows that Lawrence Holcomb, the owner of the alleged stolen property, intended to part with both title and possession of his stock certificates (the alleged stolen property), and hence, the case, if anything, would be swindling and not theft. In this connection he also insists that the court below erroneously sustained the state's objection to his question to Holcomb, set out in his bill of exceptions No. 1, as to what his intention was when he parted with said certificates. We think the matter covered by this question had already been answered, and that the court's action in sustaining the state's objection to it as repetition, was correct. We note, however, that said bill is fatally defective in that it does not set out the answer expected from the witness. Smith v. State, 90 Tex.Crim. Rep.; Smith v. State, 82 Tex.Crim. Rep.; Knight v. State,87 Tex. Crim. 134; Perea v. State, 88 Tex.Crim. Rep.; Kalsky v. State, 37 Tex.Crim. Rep.; Stroube v. State,40 Tex. Crim. 583; Ellis v. State, 59 Tex. Crim. 630.

Even if Holcomb had testified that he intended to part with his property in exchange for other like property, this in no sense would have made appellant and his companion in getting the property, the owners thereof, nor would such testimony have supported the conclusion that appellant was not guilty of appropriation of the property when he sold it at once after obtaining possession of it. The property was put into the hands of said parties to exchange for other stock certificates, and Clark Company in New York were made the agents for the transfer of the stock certificates. There was nothing about the transaction *Page 555 to indicate that Holcomb intended an express parting with his title, as well as possession of his property. The law of such a case is discussed in the recent case of DeBlanc v. State,118 Tex. Crim. 628, in which many cases are referred to, including Anderson v. State, 77 Tex.Crim. Rep., which appellant thinks is not the law. An extended note in 26 A. L. R., p. 384, cites many Texas cases in support of the proposition that one is guilty of theft who by fraud or a trick obtains possession of the property of another, intending at the time to convert it to his own use. We are still of opinion that there was no error in the way the case was submitted in the charge of the court.

The motion for rehearing will be overruled.

Overruled.