Clark v. State (59 Tex. Crim. 246, 1910)

DAVIDSON, Presiding Judge.

Appellant was convicted of theft, and his punishment assessed at two years confinement in the penitentiary.

The evidence discloses that appellant had been convicted of burglary, and his punishment assessed at three years confinement in the penitentiary, the indictment in this case being for the alleged theft committed in connection with that burglary. Plea of former conviction was interposed, but not considered upon the trial of this case. The action of the court in this matter was correct. Under our statute a party can be convicted of burglary as well as of the offense committed after the burglarious entry. The conviction of one can not be plead in bar of the other.

It is further disclosed that appellant was found in the store burglarized by an officer and arrested. In a show case in the store was the figure of a woman used for the display of goods. On this figure was a dress and a cloak, the cloak being valued at $40 and the dress at $85. Appellant had taken the cloak from the figure, rolled it up and laid it on the floor, and was trying to take off the dress at the time the officer arrested him, but had not succeeded. The dress, as testified by the owner of the store, had been pulled down to the bottom of the figure but had not been removed. He further testified that the dress could not be removed in that manner, that i-t would have to be taken off oyer the head of the figure. This, for instance, is the State’s case.

1. Among other contentions made, is that the evidence does not support the verdict of the jury. We are of opinion that this contention is correct insofar as a felony conviction is concerned. If appellant had removed the cloak from the figure and had gotten possession of it in this manner, this would constitute theft, but we are of opinion, with reference to the dress, that he could not be convicted of theft. In order to constitute theft the thief must have complete control of the thing sought to be stolen. Mr. Bishop in his New Criminal Law, section 795, says:. “This control must be of such importance that no imperfect control, whether brief or protracted, will be sufficient.” He further says: