Fairy v. State

Citations

• 18 Tex. Ct. App. 314
• 1885 Tex. Crim. App. LEXIS 99

Syllabus

<p>1. Theft.— A part owner of property cannot be convicted for theft of it, unless the person from whom he took it was entitled to the exclusive possession of it at the time of the taking. (Penal Code, art. 731.)</p> <p>8. Same — Part Owner — Charge of the Court — Case Stated.—Appellant was convicted of theft of property alleged to belong to one F., who, as the proof showed, had bought it from a half-brother of appellant. The property had previously belonged to a brother of the appellant who had died intestate, unmarried, and on whose estate there was no administration. There was no proof that the appellant had authorized the sale made by his half-brother, or had parted with his inherited interest in the property; but there was proof that the proceeds of the sale were applied to the payment of the funeral expenses of the deceased former owner of the property. In substance, the charge of the trial court authorized the jury to convict the appellant if (finding the other inculpatory facts) they believed beyond a reasonable doubt that the proceeds of the sale were applied to the expenses of the last illness and funeral of the deceased former owner. Held, that the charge was essentially erroneous because the law made the appellant a part owner of the property, and his ownership could not be divested in the manner indicated, and his right to the possession of it was as good as that of the alleged owner, or that of the latter’s vendor-.</p> <p>3. Fact Case.— See evidence held insufficient to sustain a conviction for theft, because it fails to implicate the accused in the taking of the property alleged to have been stolen.</p>