dissenting.
The majority reverses this conviction on what it considers an error in the court’s charge to the jury when there has been no contention that there was such an error.
V.T.C.A., Penal Code, Section 31.03, Theft, provides, in pertinent part, as follows:
“(a) A person commits an offense if, with intent to deprive the owner of property:
U * * *
“(2) he exercises control over the property, other than real property, unlawfully.”
The court, in this case, instructed the jury under the terms of that part of the theft statute just cited when he instructed the jury as follows:
“Now, if you find from the evidence beyond a reasonable doubt that on or about the 6th day of February, 1975 in McLennan County, Texas the defendant, Charlie Long, Jr., did then and there unlawfully obtain and exercise control over property, to-wit: one Michelin truck tire of the value of $200.00 or more but less than $10,000.00 knowing said property to be stolen and with the intent to deprive the owner, Max Taylor, of said property, then you will find the defendant guilty as charged in the indictment.
“Unless you so find beyond a reasonable doubt, or if you have a reasonable doubt thereof, you will acquit the defendant.”
In this case appellant was charged correctly in the indictment. The court charged that part of the statute and this is all that should be required. Under the terms of the statute it makes no difference who stole the property. All it requires is that the accused unlawfully exercised control of stolen property.
The majority should realize by now that Article 1430 of the former penal code has been repealed and should limit its holding to the present penal code.
V.T.C.A., Penal Code, Section 31.02, Consolidation of Theft Offenses, is as follows:
“Theft as defined in Section 31.03 of this code constitutes a single offense superseding the separate offenses previously known as theft, theft by false pretext, conversion by a bailee, theft from the person, shoplifting, acquisition of property by threat, swindling, swindling by worthless check, embezzlement, extortion, receiving or concealing embezzled property, and receiving or concealing stolen property.”
The practice commentary is as follows:
“No part of the old Penal Code produced more confusion, more appellate litigation, and more reversals on technicalities unrelated to the actor’s guilt or innocence than the multitude of offenses proscribing criminal acquisitions of another’s property. Although the theft offenses attempted to separate guilty from innocent acquisitions, they did so clumsily, and their effect all too often was to embroil the courts in nice questions about the appropriateness of conviction under one offense label as opposed to another. The distinctions between the various offenses were unnecessary for establishing the point at which acquisitive conduct becomes criminal — that can be done generally — and they provided no rational basis for penalty determinations or for the provision of defenses; they did, however, place unnecessary obstacles before the conviction of the guilty.
“For this reason in the new code most of the theft offenses are consolidated into a single, comprehensive offense aimed at the harm that accompanies the acquisitive conduct, however, and acquisition is accomplished. Section 31.02 serves merely to explain and emphasize the intent of the theft section: theft is a single offense with a uniform culpable mental state, a *901uniform result, uniform penalties, and uniform defenses, all of which focus on culpability rather than, as under prior law, whether the state is pursuing the defendant under the appropriate offense label." (Emphasis added)
We have a new penal code. The trial judge followed it in this case. There is no more appropriate time than now to disregard the former penal code especially when it does not apply. Just because something has been done for over a hundred years does not mean that it should be followed when the statute upon which it was based has been repealed.
The judgment should be affirmed.