Smith v. State

Citations

• 7 Tex. Ct. App. 382

Syllabus

<p>1. Theft—Intent — Charge of the Court.—When, in a trial for theft, there was evidence, though vague, which tended to show a bond fide purchase of the property by the defendant, it was the duty of the court below, whether asked or not, to have submitted that issue in the charge to the jury; and this court will take cognizance of omissions of this character, though not assigned as error nor urged here as cause for reversal.</p> <p>2. Surplusage.—Indictment for theft of a mule alleged that it was the property of an owner unknown, and was taken from the possession of one D.j who had estrayed it and was holding it for the owner, and was taken without the consent of D. Held, that the material and issuable matter in this allegation was that the animal was a mule which was an estray, and was in the possession of D., and taken therefrom without his consent. That D. had estrayed the animal was not a descriptive or material averment, but surplusage.</p> <p>3. Variance is a disagreement between the allegation and the proof in some matter legally essential to the charge.</p> <p>4. Charge of the Court. — When, as in this case, the inculpatory evidence was in the main circumstantial, the law governing that character of evidence should have been given in charge to the jury.</p>