The appellant was convicted of theft. The property stolen was an automobile. The appellant's confession, showing due warning and legal verification, was as follows:
"I was up town by myself on Saturday night, the 15th day of February, 1919. I took a car on Travis Street, a Hudson Super Six. I met Frank Cervantes on Kelly Field Road. He told me "let's take this car towards Saspanco.' Frank was driving his own car. I drove the Hudson car and Frank drove his car. We went towards Saspanco; we stopped on the road about 11 or 12 miles out of the City. There, we stripped the Hudson car; we took the battery, the four tires and rims and the back cushion and one spare tire. We took the spare tire before we left town and left it at Frank Cervantes' house on Apache Street. I went with Frank Cervantes to Saspanco. I waited for him at the Depot; he told me to wait there for him that he was going to leave the stuff at a house and he drove in the Company Grounds. When he came back he had left the stuff there, we came back to San Antonio in Frank Cervantes' car. When we got back, he handed me Five Dollars and said he would hand me the balance later, but he never did.
(Signed) RODRIGO ESCOBEDO.
There was other proof showing that the car was taken from the point designated in the confession, and that upon the information therein contained the car was found in the condition described by the appellant.
The court gave a charge submitting the law of theft as applied to the facts in a manner which we regard as unexceptionable, against which the only criticisms addressed by the appellant are those in which he contends that the appellant's defensive theory should have been submitted in an affirmative manner, and that the case should have been treated as one depending upon circumstantial evidence alone. The appellant's confession, containing the definite and direct *Page 279 statements that he took the car and appropriated it to his own use, the owner having testified to facts showing the taking without his consent, renders the case one in which we cannot assent to the view that it rested upon circumstantial evidence alone. Sullivan v. State, 40 Tex.Crim. Rep.; Gallegos v. State, 49 Tex.Crim. Rep..
In a case in which the evidence raises the defensive theory in an affirmative way, it is encumbent upon the court to so submit it. We find nothing in the present record, however, which brings this well known principle into operation. There is no evidence which, to our mind, called for a charge instructing the jury in an affirmative way that an absence of intent upon the part of the appellant at the time he took the car to appropriate it to his own use would require an acquittal, nor do we find evidence that presented an affirmative theory that the taking of the car was merely for the purpose of using it, or appropriating some of its parts. In no part of the record are such issues submitted, unless they arise from the confession which we have quoted. The confession does not as we interpret it, qualify the appellant's intent to steal it, nor explain his possession of it in any manner inconsistent with his guilt, or consistent with his innocence.
The indictment described the owner as "J.H. Alphian;" the proof showed the name of the owner to "be" J.H. Alphin." We think the trial court was not in error in holding these idem sonans.
The automobile was one belonging to the United States Government, put in possession (under a rental contract) of a construction company who had charge of military work, and was ordinarily under the control and management of Major Shaw, who, as we understand it, was supervising the work. The owner named in the indictment was a Captain subordinate to Major Shaw, and on the occasion of the theft Captain Alphin, with Major Shaw's consent, was using the car, and brought it to San Antonio for a purpose of his own; and while engaged, parked the car on one of the principal streets of the city of San Antonio, from which the theft occurred. Captain Alphin had the actual control, care, and management of the property, it was from his possession that it was taken. Bailey v. State, 18 Texas Crim. App., 426, and other cases cited in Branch's Annotated Texas Penal Code, p. 1323. Allegation of ownership in him was proper.
Finding no error in the record, the judgment is affirmed.
Affirmed.