George Smith v. The State, 35 Tex. 738

Ogden, J. The judgment of the district court in this case must be affirmed. The indictment charges the defendant in the usual form, of the theft of a mule, and the jury, under a proper charge of the court, found him guilty. There could have been no doubt of the taking and appropriation; and the only question which could legitimately have been suggested to the minds of the jury was in regard to the fraudulent intent.

The defendant pretended to hire the animal to ride for a day or two, with the promise to return it at the time specified ; but instead of doing so, he traded the mule off for a horse, and then attempted to deceive the owner by falsely telling him that the mule had broken away from him and escaped. The intimation that he gave as he rode the mule off, together with his subsequent false and fraudulent assertions and acts, were sufficient to convince the jury that his original intention was to obtain (by the use of the false pretext of hiring) possession of the animal, and then to appropriate it to his own use.

If such was his intention, then under

Article 2385, Paschal’s Digest, he was guilty of theft. (2 Bishop on Criminal Law, 818.) We cannot appreciate the objection of counsel to the indictment, because it does not specifically charge the peculiar circumstances and facts of the case which constituted the crime of theft. The office of an indictment is to charge the offense, and not the particular facts which constitute the offense. There was no error in the charge of the court, and none in refusing to give the charge asked by defendant, as the same had, in substance, been given in the charge by the court. The judgment is affirmed. Affirmed.