The offense is theft; punishment fixed at confinement in the penitentiary for a period of two years.
According to the testimony of Lake, after collecting $140.00 in money, he handed it to his wife with the request that she call his attention to it on his first trip to town so that he might take the money with him and deposit it in the bank. She placed the money in a little sack and pinned it to her dress, where she kept it for a week or more. The appellant, a negro woman, did not live at the *Page 41 home of Lake but came there and did the washing for his family. She came to his home upon a certain day, took the soiled clothes to another place and washed them. During the day, Mrs. Lake missed the money. She went immediately to the field where her husband was working and told him about it. He went to the appellant and taxed her with taking of the money. After calling upon him to describe it, appellant conducted him to the bed in her house where she revealed the money under the cover. In her testimony the appellant explained the possession of the money with the statements that just as she had completed the washing, she noticed a sack containing money floating on the water in the tub and took it home with her.
The indictment was found under Art. 1329 of the Penal Code and charged the taking from W. C. Lake without his consent. Upon this theory the jury was instructed in the charge of the court against which there were directed no objections.
It is insisted, however, that the conviction should not stand for the reason that the ownership of the money was not in Lake but in his wife; that it was in her possession and that the care, control and management of it was in her.
Reference is made by the appellant's counsel to many cases discussing the subject of ownership in cases of theft, notably the early case of Frazier v. State, 18 Texas Crim. App. 434, in which the announcement is definitely made that by ownership in cases of theft, as referred to in the statute, is meant the person who has possession of the property as well as its care, control and management. The principles, however, controlling in the present case are those which have application to theft of property of the husband and wife. Without going into a discussion of the reasoning upon which the decisions are founded, from the precedents in this State the rule is deduced that where the stolen property is owned by the husband and wife jointly as community property; and where the spouses are living together, the ownership should be laid in the husband. Wilson v. State, 3 Texas Crim. App. 209; Merriweather v. State,33 Tex. Crim. 790; Lucas v. State, 36 Tex.Crim. Rep.; Jones v. State, 47 Tex.Crim. Rep.; Branch's Ann. Tex. P. C., Sec. 2438, subdivision 3. See also Greenwood v. State,84 Tex. Crim. 548; Peoples v. State, 90 Tex. Crim. 236.
In exceptional cases as where the spouses are not living together or where the husband is absent, it has been held permissible to lay the ownership in the wife. See Miles v. State, 51 Tex.Crim. Rep.; Lane v. State, 69 Tex. Crim. 65; Childress v. State, 241 S.W. Rep. 1039.
The suggestion is made in the brief that the circumstances under which the property came into the possession of the appellant bring *Page 42 it within the rule applicable to the theft of lost property. Even if this be conceded, we fail to perceive its advantage to the accused in the present case. So far as the matter of ownership is involved, that of lost property is in the constructive possession of the real owner. Martin v. State,44 Tex. Crim. 538; Greenwood v. State, 84 Tex. Crim. 548. As applied to the present case, the real ownership was in W. C. Lake and his wife, and the proper averment was to lay the ownership in W. C. Lake. Conceding the property to be lost property, the finder of it, in order to be guilty of theft, must at the time of the taking have had the intent to steal it. See Reed v. State, 8 Texas Crim. App. 42, and numerous other cases collated in Branch's Ann. Tex. P. C., Sec. 2499. In the present case, the facts are not wanting to support such a conclusion, and there was no request for a charge bringing to the attention of the jury more specifically the necessity of proof of such intent.
We find no error, and the judgment is affirmed.
Affirmed.
ON MOTION FOR REHEARING.