Campbell v. State

Citations

• 22 Tex. Ct. App. 262
• 2 S.W. 825
• 1886 Tex. Crim. App. LEXIS 253

Syllabus

<p>1. Unlawfully Driving Stock, Etc.—An Ordinary Indictment for Theft will support a convietion for unlawfully taking into possession and driving from its accustomed range the animal of another, without the consent of the owner, and with intent to deprive the owner of its value.</p> <p>2. Theft—Felony—Misdemeanor—Case Overruled.—Article 749 of the Penal Code, in defining the offense of unlawfully driving stock from its accustomed range, enacts another character of cattle theft than that denounced generally in Article 747 of the Penal Code, but besides providing for it the same terms of confinement in the penitentiary as punishment, it authorizes alternative penalties by fine, or by both imprisonment and fine. Held, that the driving of stock from its accustomed range, etc., is but a species of cattle theft, and cattle theft is per se a felony notwithstanding the alternative punishment provided by Article 749 of the Penal Code. The position, therefore, that a former trial of the appellant having resulted in his conviction of the theft defined in Article 749, and his punishment at a fine, he can not be again found guilty of theft and awarded a term in the penitentiary as punishment, is untenable. See the opinion on the question, and note that the contra doctrine laid down in Sisk’s case, 9 Texas Court of Appeals, 90, is overruled.</p>