As we understand appellant's motion for rehearing it is predicated largely on the idea that the gravamen of the offense is the "taking" of part of the contents of the pipe line. Such is not our understanding of the law. The offense would be complete if the line was tapped with intent to appropriate any of the contents whether or not such appropriation was in fact made, just as the crime of burglary with intent to steal is complete when the burglarious entry is effected although no property be actually taken.
The indictment alleged that the pipe line in question had been constructed for transporting casinghead gas, and was being used for such purpose, and that appellant tapped said line with intent to appropriate a part of the contents. The evidence shows that appellant took from the line at a point where a "gasoline trap" was located some casinghead gasoline, and it is appellant's contention that the State's case failed because appellant took casinghead gasoline and not casinghead gas. The evidence established that the line was constructed to transport casinghead gas, and was used for that purpose. We think it immaterial just how it happened that casinghead gasoline was in the pipe line at the point where it was tapped. The State's evidence shows that appellant knew it was there because he stated to the arresting officers that he had gotten gasoline there on former occasions.
Neither do we think there is merit in appellant's contention that the State failed to prove the averment that the line was being used to transport casinghead gas. Such contention is based on the fact that witnesses were not able to say that the compressor which converted the vapor gas into liquid gasoline was being operated the night the offense was committed. It was not essential that the compressor was working at the very instant the "tapping" occurred. The compressor machine worked only when gasoline was being loaded, and loading was done two *Page 205 or three times each week. This proof sufficiently met the averments of the indictment on the use being made of the pipe line.
The evidence shows that the pipe line in question was a private line belonging to the Phillips Petroleum Company, under the control of R. C. Mason. It is appellant's contention that Art. 1111b, P. C. (Acts 1933, 43 Leg., page 732, Ch. 219), making the "tapping" of a pipe line an offense had reference only to common carrier pipe lines which were under the supervision of the Railroad Commission of the State, and not to private lines. He bases such contention on certain expressions found in Nelson v. State, 129 Tex.Crim. Rep., 86 S.W.2d 782. It was not our intention to give the restricted construction to Art. 1111b as claimed by appellant. In the opinion in Nelson's case we were endeavoring to distinguish Art. 1056, P. C., which makes it an offense to tamper with meters, from Art. 1111b, P. C., regarding the "tapping" of pipe lines, and reference to "common carrier pipe lines" was only illustrative and not restrictive.
Other matters adverted to in appellant's motion have been considered but we think are properly disposed of in our original opinion and do not require further discussion.
The motion for rehearing is overruled.
Overruled.