Wade v. State

MORRISON, Presiding Judge.

The offense is felony theft; the punishment, 5 years. The indictment charged the theft of an outboard motor, an automobile wheel and tire.

One Smith, the injured party, while at a bar, fell in among questionable drinking acquaintances, one of whom was the ap*196pellant. The parties left the bar and repaired to appellant’s home, where their libations continued. The appellant secured Smith’s consent to use his automobile for the purpose of fetching his lady friend; he returned to the house with her, where she remained for a time; the appellant then again secured Smith’s permission to use his automobile, but this time did not return. Smith’s wife retrieved her erring husband about midnight, and the police returned his automobile early the next morning. Smith discovered that an outboard motor, his spare wheel and tire, a shower curtain and certain towelling which had been in the turtle of his automobile were missing.

Smith testified that he did not give the appellant his consent to take the missing items.

It was shown that the appellant pawned the outboard motor at one place, and the wheel and tire at another, after he left in Smith’s automobile the second time.

The appellant was arrested some weeks later in Seguin.

Appellant did not testify in his own behalf but offered the testimony of his mother, who stated that Smith had instructed her son to borrow some money on what he had in the automobile for the purpose of buying more whiskey. She does not state, however, that the appellant ever returned with any whiskey.

The jury resolved this disputed issue of fact against the appellant.

The only serious question presented is appellant’s contention that the facts show conversion by bailee rather than theft" by false pretext, as found by the jury. In order to answer the question, further facts need be cited.

Appellant’s lady friend, who had lost her affection for him by the time of the trial, testified that the appellant came for her in a Dodge automobile late in the afternoon on the day in question and that on their way to the appellant’s house he tried to sell “some towels and bathroom set” to one Shorty but was unable to do so, that when they arrived at appellant’s home Smith and others were there, and that after a visit with those assembled she and appellant left again in Smith’s car. It is important to note that she testified, “Before we left the house, Paul (the appellant) told me he was going down to sell the motor.” She testified that she never saw the motor in question but that *197she was present with the appellant when he made inquiries of several people as to a prospective buyer of a “hot motor” and that she left his company before he actually disposed of the same.

We have concluded that the jury was authorized to find from this evidence that at the time the appellant asked for and secured Smith’s permission to use the automobile the second time he had at that time formed the intention of converting to his own use the items charged in the indictment.

One bill of exception relates to a question propounded to appellant’s mother. We quote the objection interposed: “We will object to that question without stating any reason.” Whatever may have prompted appellant’s counsel to so phrase his objection, we hold it to be no objection at all because it not only pointed out no grounds to the trial court but also left the impression that he had grounds but was declining to supply them to the trial court.

Finding no reversible error, the judgment of the trial court is affirmed.