The evidence shows that the money was in the clothes which Mrs. Lake delivered to appellant to wash. There is nothing to indicate that appellant knew of the presence of the money at the time she received the clothes but is all to the contrary. She carried the clothes to the residence of a daughter of Mrs. Lake, and while there washing them discovered the money in the sack floating in the wash tub. It is contended that the money came into appellant's possession lawfully and that no subsequent intent to appropriate it would constitute theft. If there was a "fraudulent taking" of the money in contemplation of the statute denouncing theft (Art. 1329, P. C.), it did not occur when the money was delivered to appellant in the laundry, because appellant knew nothing of its presence, therefore could have entertained at the time no intent with reference to it one way or the other. The "taking" of the money occurred when she discovered its presence in the wash tub. If, upon finding the money, appellant took possession of it with the intent then to defraud the owner of it and to appropriate it to appellant's own use, it would be theft. If the intent to steal did not exist at the time the money was discovered and taken by appellant, no subsequent intent to steal it would make the taking upon its discovery theft. Reed v. State, 8 Texas Crim. App. 42; Robinson v. State, 111 Texas Crim. App. 409; Landreth v. State, 53 Tex.Crim. Rep., 110 S.W. Rep. 905, and many other cases collated under Sec. 2499, Branch's Ann. P. C. We cannot agree with *Page 43 appellant that the facts do not support a finding of guilt under the principles just stated. When Mrs. Lake missed the money, she reported it to her husband. When he accosted the appellant about it, she told him she knew nothing about the money that if she had gotten it she would have given it to his wife or daughter. She continued to deny knowledge of the money for more than an hour, until finally she took Lake to her home and from the middle of the bed she got the money and delivered it to him.
It is urged that the conviction should not be permitted to stand because the court submitted the case upon a charge applicable to theft generally and not as to theft of lost property. The charge would have been more pertinent under the facts if it had embraced the latter idea, following the charge approved in Hutspeth v. State, 79 Tex.Crim. Rep., 187 S.W. Rep. 340. We would note, however, that no objection was made to the charge as submitted and no special charges upon this or any other subject were requested.
It is asserted that if the announcement in Miles v. State,51 Tex. Crim. 587, 103 S.W. Rep. 854, is the law and to be followed, the facts of this case do not support the allegation of possession in Mr. Lake, but show possession in Mrs. Lake. We think a clear distinction exits between the Miles case and the present one. The facts in the Miles case were as follows: Mr. Schumucker had telephoned his wife to bring his pocket book to him; she stopped on the way to do some shopping, leaving the pocket book in the car; Miles stole it from the car. It was held that under those facts ownership and possession were properly alleged in the wife. The property was taken from her actual possession. Not so in the present case. Mrs. Lake had surrendered actual possession of the money to appellant, unwittingly it is true, but a fact nevertheless, but a fact not known to appellant until she discovered the money in the tub. Where property belonged jointly to the husband and wife is stolen, ownership and possession ordinarily may be alleged in the husband. (See authorities cited in original opinion). When the theft of such property occurs at a time when it is lost and is in the actual possession of neither the husband nor the wife, we think ownership may be properly alleged in the husband, he being in constructive possession thereof.
The motion for rehearing is overruled.
Overruled. *Page 44