Wilson v. State

Citations

• 18 Tex. Ct. App. 270
• 1885 Tex. Crim. App. LEXIS 87

Syllabus

<p>1. Burglary with Intent to Steal—Charge of the Court—Case Stated.— In the trial of appellant for the burglary of the blacksmith shop of one B., with intent to steal certain property of his contained therein, the proof showed the breaking and entry of the shop, and the taking therefrom of B.’s brace. But there was further proof which tended strongly to show that the brace was not taken with intent to appropriate it permanently to the taker’s use, but merely for the temporary purpose of using it as the means of entering a store-house which was broken into and robbed the same night, and near which the brace was found the next morning. The charge to the jury did not submit the issue whether the brace was taken with the intent to permanently appropriate it, or with the intent to make a mere temporary use of it. No special instruction on the subject was requested, and no exception was taken to the charge given by the court; but the omission was insisted on as cause for a new trial. Held, that the law pertinent to tho issue thus raised by the evidence was a necessary part of “the law applicable to the case,’’ and therefore it was incumbent upon the trial court, whether so asked or not, to give the same in charge to the jury, and the omission to do so is error.</p> <p>2. Theft — Intent to Appropriate.— Seethe opinion in extenso for the collocation of authorities, elementary and judicial, supporting the established rule that the taking of property cannot be theft if done with the intent of using it temporarily, and without intent to appropriate or convert it permanently to the use of the taker.</p>