Harberger v. State

Citations

• 4 Tex. Ct. App. 26

Syllabus

<p>1. Theft. — The common-law rule that, to constitute theft of an article attached to the realty, there must be a severance prior to the asportation, does not obtain in this state. Under our law the act of severance converts the article into a chattel, and, no matter how instantaneous its removal may be, the taking is theft if done without the consent of the owner and with a larcenous intent.</p> <p>2. Same.—The removal of rails from a fence, without the owner’s consent, and with a larcenous intent, is theft.</p> <p>3. Jurisdiction.—Accused was tried for theft, in the District Court, on an indictment which alleged the property to be worth more than $20; but the jury found him guilty of theft of property worth less than $20, and, therefore, assessed his penalty as for a misdemeanor. He moved in arrest of judgment, on the ground that, the verdict being for a misdemeanor, the District Court had no jurisdiction.. But held, that the jurisdiction is determined by the indictment, and that being for a felony, the District Court had jurisdiction, and the motion in arrest was properly overruled.</p>