Burrell Warren v. The State, 17 Tex. Ct. App. 207

Willson, Judge. I. We think the information is sufficient. It ■directly charges that the defendant committed the theft, although it states, parenthetically, “ as shown by the complaint of H. M. Sullivan.” These words not being essential, nor descriptive of the offense, may be treated as surplusage. It is unlike the informations in the cases cited by counsel for defendant (Hunt v. The State, 9 Texas Ct. App., 404; Allen v. The State, 13 Texas Ct.

App., 23), where the allegations were that the offenses were committed as shown by the complaints, etc., without anything to indicate that the county attorney intended to directly aver himself the commission of the offenses. In Allen v. The State, supra, it is said: “ Had the words been contained in parenthesis, or omitted entirely, the information would not have been obnoxious.” In this case the words being contained in parenthesis, the objection is not a good one. None of the objections to the information are well taken. II.

It is shown by the evidence that the property charged to have been stolen by defendant was lost by the owner and found by the defendant. Upon this state of facts the court charged the jury as follows: “Lost property may be the subject of theft.

And if one find lost property, and at the time of finding, or immediately thereafter, forms in his mind an intent to defraud the owner, or deprive him of the value of the same, and to appropriate the same to his own use and benefit, he cannot claim that the taking was not wrongful.” This charge was promptly excepted to by the defendant, and the following special charge was requested by him, which w is refused, viz.: “ The intent is the gist of the offense, and such into ;t must exist at the time of the taking.

If the intent to steal did not exist at the time of the taking, no subsequent felonious taking will render the previous taking felonious.” The charge given by the court was erroneous because it did not confine the fraudulent intent to the very time of the taking, but extended it to a time immediately after the taking, which the law does not warrant. “ Immediately,” as used in the charge, does not mean instantly, at the very time of the taking, but it means a time directly thereafter, leaving the jury to determine for themselves how long a time after the taking would be immediately thereafter.

Such is not the rule with regard to the theft of lost property, or in fact of any other property. The correct rule is stated in the above quoted special charge, which was refused by the court. (Reed v. The State, 8 Texas Ct. App., 40; Wilson v. The State, 14 Texas Ct. App., 205; Dow v. The State, 12 Texas Ct. App., 343; Knutson v. The State, 14 Texas Ct. App., 570;. Robinson v. The State, 11 Texas Ct. App., 403.) Because the court erred in giving the charge quoted, and in refusing to give the charge requested, the judgment .is reversed and the cause is remanded.

Reversed and remanded. [Opinion delivered November 26, 1884.]