Appellant was convicted of theft of a watch, and sentenced to two years in the penitentiary, from which judgment he appeals.
It appears that on the 25th of June, 1891, Miss Arnett lost a watch at the depot at Bertram, but did not miss it until she was on the train; and they searched the train, but could not find it. It was the property of Miss Wilson, of the same place, who had loaned it to Miss Arnett. Defendant was at the depot on the night it was lost. A few days after, defendant suggested to a witness the propriety of offering a reward for it. On the 24th of October defendant stated to Dr. McCollum, who had married Miss Wilson, he had seen a man in his shop with a watch with the name "Wilson" scratched in it, and defendant wanted to know if witness McCollum would pay $25 for it. Witness replied he would pay $25 for the watch and man. Defendant lived at Liberty Hill, in Williamson County. He next day telephoned that he had the watch, and it cost him $35 to get it from a man in Austin. That night, by agreement, Dr. Wilson, the father of Mrs. McCollum, met defendant at the depot, who returned the watch.
The indictment in this case is skillfully drawn. It contains six counts, and covers every phase of ownership — theft from the person, theft, and receiving stolen property. There seems to be no doubt of the fact that defendant found the watch in question, either in the depot or in the street, and that he kept possession of it until its return some four months after. Two material questions arise upon the facts: *Page 351
1. When he found the watch, did he know the owner, or have reason to believe the owner could be found by ordinary inquiry? We think defendant was put upon fair notice of the ownership. If he did not find the watch in the depot, where the young ladies had been awaiting the train, yet the facts that he saw them there, and knew of their presence in the immediate vicinity in which the watch was found, also the fact that it was a lady's watch, with the family name of the owner clearly legible thereon, point with sufficient certainty to the owner.
2. If he knew or could have known the owner by ordinary diligence, with what intent did he retain possession of the property? Was it to appropriate it to his own use, or to obtain a reward for finding it? If to appropriate it to his own use, it was theft, and the conviction is correct, unless it was voluntarily returned within a reasonable time. A voluntary return must be a return willingly made by the defendant, whatever be the motive inducing it. Allen v. The State, 12 Texas Ct. App. 190[12 Tex. Crim. 190]. But it can not be made when defendant is caught in possession of the stolen property (Grant v. The State, 2 Texas Court of Appeals 167[2 Tex. Crim. 167]; nor when the defendant is caught in the act (Harris v. The State, 29 Texas Court of Appeals 104[29 Tex. Crim. 104]; Boze's case, ante, 347); nor after prosecution is begun. Penal Code, art. 738. We think the property was voluntarily returned, it being made directly to Dr. Wilson, without demanding any reward. But four months is hardly a reasonable time. It was a question for the jury, and they evidently thought the time of detention was unreasonable.
But it is contended that the object of holding possession was to obtain a reward; that this is shown by a remark made by defendant, that Dr. Wilson ought to offer a reward for the watch, and by his offer to Dr. Wilson's son-in-law to get the watch if he would pay $25.
These questions were submitted to the jury by the following charge of the court: "When a man finds goods that are lost, and appropriates them with intent to take entire dominion over them, he at the same time knowing or really believing the owner can be found, the offense would be theft. To constitute a finding theft, the intent to defraud the owner and appropriate the property to his own use must exist in the mind of the finder at the time he takes possession of the property. If the intent to steal did not exist at the time of the taking, no subsequent intent to steal will render the original taking theft." Reed v. The State, 8 Texas Ct. App. 41[8 Tex. Crim. 41]; Warren v. The State, 17 Texas Ct. App. 207[17 Tex. Crim. 207]; Wilson v. The State, 20 Texas Ct. App. 662[20 Tex. Crim. 662]. Again, after charging the statute on voluntary return (Penal Code, article 738), the court says: "Whether or not property has been returned within a reasonable time is, like all other facts, a question for the jury, to be determined from all the facts and circumstances in evidence before you." The court further charged: *Page 352 "Upon the subject of appropriation you are instructed, that if defendant found the property, but took it with the intent to hold it only for the purpose of obtaining any reward that might be offered for its recovery, and without any intention to permanently appropriate it, then you must acquit."
These instructions were sufficient, and certainly as fair as defendant could ask; but the jury, in view of the facts that the defendant had several times claimed the watch as his own, and that on one occasion he was apparently trying to trade it off, together with the length of time he held possession, came to the conclusion he intended to appropriate it, and we can not say they erred. There was no exception taken to the charge, and no special charges asked upon these questions.
The appellant claims that the verdict was insufficient, the word "guilty" being spelled "guitty," and "penitentiary" being spelled "penitenture." We do not think the error well taken. Even if the word "guilty" was in fact written "t," it is clearly apparent what verdict was intended by the jury. Birdwell's case (just decided).
The appellant further complains that the court erred in admitting statements of the defendant made over the telephone. Dr. McCollum testified that he knew and distinguished defendant's voice, and that was all that was necessary. After a careful consideration of this cause, we see no reason to reverse it, and the judgment is affirmed.
Affirmed.
Judges all present and concurring.