Conviction is for theft of an automobile, punishment being two years in the penitentiary.
About seven o'clock on the evening of August 10th, 1928, Elton Whiteside parked a Dodge coupe in front of Bass' Drug Store in the City of Terrell; he went inside where he remained probably five minutes; when he came out the car was gone. He knew appellant by sight but not by name; he saw appellant standing near as witness left his car. The witness Dixon knew appellant and also knew the Whiteside car. He testified that about the same time of the evening fixed by Whiteside and near the place where the car had been left, witness saw appellant driving the Whiteside car; he drove it into the fender of the car witness was in, which attracted witness' attention to the car and driver. The car was found by officers about twelve o'clock the same night two blocks from where it had been taken. Its condition indicated that it had been driven without oil; it was considerably damaged. Upon the trial appellant denied having taken the car, and testified that he was at another place when the car was stolen. Other witnesses gave testimony to the same effect. The issue of fact thus made was settled by the jury in favor of the state. *Page 311
Upon cross-examination appellant admitted that besides the accusation for which he was then being tried he had also been indicted in the same court for burglary and theft. Bill of exception number one presents the following occurrence. The prosecuting attorney asked appellant "if he remembered the time when he was accused of the theft of Tom Cooley's car from Kaufman, and if he had not told one Henry that at the time he was looking for appellant regarding the theft of that car that he (appellant) was under the platform with a gun, watching for them." There is nothing in the bill which advises us whether the other indictment for theft against appellant involved the Cooley car. Whether it did or not the objection to the question should have been sustained; it related to the details of an offense and would be inadmissible even though it may have culminated in an indictment. (Sec. 171 Branch's Ann. Tex. P. C.) If it referred to an accusation not merged into legal proceedings it was also inadmissible. (Sec. 168 Branch's Ann. Tex. P. C.) The court overruled the objection to the question and the defendant answered in the negative. The state seems to have abandoned the matter at that point and made no effort to prove by Henry that any such thing occurred. While the bill presents an erroneous ruling on the part of the court, yet in view of the negative answer of appellant, in connection with his admission that he had been indicted in other cases for burglary and theft, we can not regard the incident as of sufficient importance to demand a reversal in view of the further fact that the minimum penalty was assessed.
The court defined theft in the usual terms as being the "fraudulent taking of corporeal personal property belonging to another from his possession without his consent with the intent to deprive the owner of the value of it, and to appropriate it to the use and benefit of the person taking."
In connection with this definition he further instructed the jury as follows:
"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 removed 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 elapses the offense is complete."
Proper written objection was interposed to that part of the charge last quoted as being upon the weight of the evidence. The fact that *Page 312 the car was found some five hours after the theft at a point not far removed from the place of taking may have induced the court to advise the jury more fully as to the meaning of a "taking" than would ordinarily have been required. If the defense interposed had been a lack of fraudulent intent at the time of "taking," giving the charge complained of would have raised a serious question. The defense, however, was a denial of any taking whatever and an effort to establish an alibi. In our opinion this renders the charge harmless under the facts of the present case.
The judgment is affirmed.
Affirmed.
ON MOTION FOR REHEARING.