The appellant was indicted and tried for *Page 497 felony theft and convicted of misdemeanor theft, and his punishment assessed at confinement in the county jail for six months and a fine of $250.
The charging part of the indictment under which appellant was tried and convicted reads as follows:
"Did then and there unlawfully and fraudulently take one Dunlop balloon automobile casing of the value of fifteen dollars, and two Fisk balloon automobile casings of the value of fifteen dollars each, totaling thirty dollars, three automobile rims of the value of one dollar each, totaling three dollars, and three automobile inner tubes of the value of two dollars each, totaling six dollars, the value of all of the said articles aggregating fifty-four dollars, the same being then and there the corporeal personal property of and belonging to L. E. Hawkins, from the possession of said L. E. Hawkins," etc.
We have examined the statement of facts carefully and find the same amply sufficient to sustain the verdict of the jury.
The only defense made by the appellant and the only evidence offered was testimony tending to show the aggregate value of the property alleged to have been stolen to be under the value of fifty dollars. Inasmuch as the appellant was convicted of misdemeanor theft, the question of felony theft passes out of the case.
Appellant, by a motion to quash the indictment and also by bills of exception Nos. 1 and 2, raises the question as to whether or not the appellant should have been indicted and tried under Art. 1346 of the Penal Code instead of Art. 1410, the general theft statute. The offense denounced under Art. 1346 is an entirely separate and distinct offense from that of theft. The offense established by the proof in this case against the appellant was theft. The offense denounced in Art. 1346 is malicious mischief. The malicious and wilful removal from any motor vehicle or bicycle, etc., of any tire, rim, etc., without authority from the owner and unlawfully would constitute a violation of the law under said Art. 1346, but when the facts go further, as they did in this case, and show a fraudulent design to appropriate the property to the use of the offender, and deprive the owner of the value of the same, the offense assumes the graver character of theft and, if the value of the property be under fifty dollars, is punishable by confinement in the county jail and by fine or by confinement in the county jail alone.
The state had the right to elect to prosecute for the theft of the articles instead of prosecuting for the offense under Art. 1346. *Page 498
There being no errors in the record, the judgment of the trial court is affirmed.
Affirmed.
The foregoing opinion of the Commission of Appeals has been examined by the Judges of the Court of Criminal Appeals and approved by the Court.
ON MOTION FOR REHEARING.