Johnson v. State

BELCHER, Judge.

The conviction is for felony theft; the punishment, two years.

Appellant contends that the indictment charging him with *178taking ‘one (1) cattle guard” does not describe with sufficient certainty the kind or quality of property alleged to have been taken, and therefore it does not apprise him of the nature of the accusation against him.

Cattle guards are commonly known and have been the subject of the statutory law of Texas in connection with fences, roads, highways, and right-of-way fences and crossings of railroads, together with the decisions of its courts since early in its history. Arts. 6400 and 6704, Vernon’s Ann. Rev. Civ. St.; 19 Texas Jur. 613, Sec. 15; 35 Texas Jur. 180, Sec. 118.

The description of the property alleged to have been stolen as “one (1) cattle guard” was sufficiently definite to apprise appellant of the nature of the charge against him. Beland v. State, 160 Texas Cr. Rep. 351, 271 S.W. 2d 430.

About February 5, 1957, Trent Phillips and Johnny Ward discovered that a “home made” cattle guard which they owned jointly, located on Ward’s property, was missing; and shortly thereafter they found it in a junk yard in east Waco; and they testified that they gave no one their consent to take it..

The testimony shows that there were no cattle guards for sale in the area where this one was taken and no sales had there been made, and following such testimony it was shown that the replacement value of the cattle guard in question was eighty dollars. ■

Appellant, in his written statement introduced in evidence, states that on or about February 4 or 5, 1957, he and Curly Landrum went to Johnny Ward’s place where they saw a cattle guard which they placed in his trunk, without the owner’s consent, and later sold it in east Waco.

Appellant did not testify or offer any testimony in his behalf.

The severance of the cattle guard from the realty converted it into personal property and it thereby became the subject of theft. 41-A Texas Jur. 74, Sec. 57; Branch’s Ann. P.C. 2d 66, 2616; Ex parte Wilke, 34 Texas 155; Harberger v. State, 4 Texas App. 26, 30 Am. Rep. 157; Alvia v. State, 42 Texas Cr. Rep. 424, 60 S.W. 551; Faris v. State, 69 S.W. 140; Fleischman v. State, 89 Texas Cr. Rep. 259, 231 S.W. 397; Floyd v. State, 164 Texas Cr. Rep. 50, 296 S.W. 2d 523.

*179The testimony of the state sufficiently shows that the appellant fraudulently took one cattle guard of the value of more than. $50 from the owners thereof, without their .consent, and with the intent to deprive them of its value and to appropriate it to his own use.

The judgment is affirmed.

Opinion approved by the Court.