Marshall v. State

Citations

• 31 Tex. 471

Syllabus

<p>The 748th article of the Criminal Code reads as follows: “The taking must be wrongful, so that if the property came-into the possession of the person accused of theft by lawful means the subsequent appropriation of it is not theft; but if the taking, though originally lawful, was obtained by any false pretext, or with an intent to deprive the owner of the value thereof, and appropriate the property to the use and benefit of the person taking, and the same is so appropriated, the offense of theft is complete/’ (Paschal’s Dig., Art. 2385, Note 684.) An indictment upon this article should-aver the fact that the property was delivered with the consent of the owner and the intent with which the possession was obtained.</p> <p>The indictment being in the usual form, omitting the words “ without the consent of the owner,” it was inadmissible to prove the fraudulent representations by which the defendant got possession of the property.</p> <p>As it would be proper to detain the accused until an indictment could be procured to suit the facts, the case was remanded to give an opportunity for an affidavit, should that be desired. (Paschal’s Dig., Art. 2976.)</p>