
    BELL v. STATE.
    (Court of Criminal Appeals of Texas.
    May 14, 1913.)
    1. Indictment and Information (§ 190)— Conviction of Lesser Grade of Offense —Attempt.
    Under Code Cr. Proc. 1911, art. 772, subd. 13, providing that every offense includes within it an attempt to commit the offense, when such attempt is made penal, and article 771, providing that where a prosecution is for an offense consisting of different degrees the jury may find accused guilty of any degree inferior to that charged in the indictment, under an indictment charging theft privately from the person, the jury could convict of the offense of attempt to commit theft from the person, if the evidence authorized such conviction.
    [Ed. Note. — Eor other cases, see Indictment and Information, Cent. Dig. §§ 596-603; Dec. Dig. § 190.]
    2. Criminal Law (§ 863) — Trial—INSTRUCTION — INSTRUCTION AFTER RETIREMENT.
    Code Cr. Proc. 1911, art. 754, provides that the jury, after retirement, may ask further ihstruction touching any matter of law, and the court shall give such instruction in writing, but shall only instruct upon the particular points on which it is asked. In a prosecution for theft from the person, the jury, after retirement, asked the judge whether they could render verdict finding accused guilty of attempt at theft, in answer to which the court charged that if the jury found from the evidence, beyond a reasonable doubt, that accused was ■ guilty of an attempt to commit theft from the person — that is, that in the county and state námed in the indictment, on or about the date named, before the presentment of the indictment, accused did attempt to unlawfully, fraudulently, and privately take from the person of the one named corporeal, personal property, without the knowledge of such owner, -and with an intent to deprive him of its value •and appropriate it to his own use — then the jury could find accused guilty of an attempt to commit theft from the person. Held, that the •charge given in answer to the jury’s question was proper.
    [Ed. Note. — Eor other cases, see Criminal Law, Gent. Dig. §§ 2065-2067; Dec. Dig. § 863.]
    3. Criminal Law (§§ 763, 764) — Trial — Instruction Not on Weight of Evidence.
    The additional charge given by the court was not on the weight of the evidence.
    [Ed. Note. — Eor other cases, see Criminal Law, Cent. Dig. §§ 1731-1748, 1752, 1768, 1770; Dec. Dig. §§ 763, 764.]
    Appeal from District Court, Travis County; George Calhoun, Judge.
    Walter Bell was convicted of an attempt •to privately steal from the person, and he •appeals.
    Affirmed.
    C. E. Lane, Asst. Atty. Gen., for the State.
    
      
      For other oases see same topic and section NÜMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep’r Indexes
    
    
      
      For other cases see same topic and section NUMBER in Deo. Dig. & Am. Dig. Key-No. Series & Rep’r Indexes
    
   PRENDERGAST, J.

Appellant was convicted of an attempt to privately steal from the person, and his punishment fixed at two years in the penitentiary.

The indictment was in two counts; the first properly and 'fully alleging that appellant unlawfully, fraudulently, and privately stole one pocketbook containing money from B. T. Campbell, without the knowledge and consent of said Campbell, and with the intent, etc. The second count was quashed, and the case was in no way submitted to the jury under that count. Hence it is unnecessary to further state it.

The court, in an apt, full, and correct charge, submitted the case under the charge of a completed theft privately from the person. He also, in the main charge, submitted the question of an attempt to commit said offense. In addition to the court’s charge of theft privately from the person, he gave, at appellant’s instance, his only requested charge on that subject, to the effect that if the jury found that appellant took said purse and money from the person and possession of Campbell, but at the time of said taking, and before appellant secured possession of the purse, Campbell had knowledge of said taking, or if they had a reasonable doubt of- it, to acquit him of theft from the person. It seems that the cas.e was fought out by appellant on the theory, as shown by his said special charge and the argument of his counsel before the jury, that they could convict appellant only of the offense of theft from the person, and under the indictment they could not convict him for an attempt to commit such theft.

It is shown that the jury became confused, and did not understand from the main charge of the court, under appellant’s said contention, whether they could convict him of an attempt to commit such theft. They thereupon, after being out some time, returned into open court and propounded this written question to the court: “Judge Calhoun: Are we, the jury, permitted to render verdict finding the defendant guilty of attempt at theft under this indictment on the first count?” In answer thereto the court submitted to the jury this further written charge-: “Gentlemen of the Jury: In answer to the question asked by you, the jury are instructed that under the law, if they find from the evidence in this case, beyond a reasonable doubt, that the defendant is guilty of an attempt to commit the offense of theft from the person — that is, that in the county of Travis and state of Texas, on or about the 8th day of October, 1912, and before the presentment of this indictment, the defendant, Walter Bell, did then and there attempt to unlawfully, .fraudulently, and privately take from the possession and the person of one B. T. Campbell corporeal personal property of the said B. T. Campbell, without the knowledge of the said B. T. Campbell, and with the intent to deprive the said B. T. Campbell of the value thereof, and with the intent to appropriate said corporeal personal property to the use and benefit of him, the said Walter Bell — then the jury would be authorized under the law to find the defendant guilty of an attempt to commit the offense of theft from the person, under the indictment in this case.”

Appellant’s contentions are that the evidence is insufficient to sustain the verdict; that appellant was convicted of an offense not charged in the indictment; that the verdict has the effect of an acquittal under the charge in the indictment; that the court erred in submitting the issue of attempt to commit theft from the person, because no such offense is charged in the indictment; and that the said additional charge in answer to the jury’s question should not have been submitted, because the original main charge had sufficiently set forth the law on said question, and the giving of said special instruction was upon the weight of the evidence.

None of appellant’s contentions are sound. Under the main charge of the court and the special requested charge by appellant, which was given, the evidence that Campbell knew appellant was attempting to steal his purse containing his money out of his pocket, and that he detected him thereat, before he completed the'theft, was such as not to satisfy the jury that the actual taking was complete before Campbell knew it. At least, the evidence on this point, under appellant’s contention before the jury and said charges, was such that the jury was not satisfied therefrom that the theft privately was not completed before Campbell knew it. And under appellant’s contention and argument before the jury it is shown that they did not know from the main charge of the court whether they could convict him under said indictment of an attempt to privately steal. Hence their question to the court and the court’s charge in answer thereto. The evidence, in our opinion, was clearly sufficient to show an attempted theft privately from the person, if it was not sufficient to show such completed theft.

Our statutes (articles 1350 and 1351, P. C.) make it an offense to privately steal from the person, and that, in order to constitute such offense, the “theft must be committed without the knowledge of the person from whom the property is taken.” . But the next article (1352), under the same chapter, prescribes, “If any person shall attempt to commit the offense of theft from the person, as defined in the two preceding articles, he shall be punished by confinement in the penitentiary not less than one nor more than three years,” which was an amendment added to the said other two articles by the act of 1909.

By article 772, O. O. P., it is provided: “The following offenses include different degrees.” After specifying several other offenses, subdivision 13 is: “13. Every offense includes within it an attempt to commit the offense, when such an attempt is made penal by law.” And article 771, O. O. P., is: “Where a prosecution is for an offense consisting of different degrees, the jury 'may find the defendant not guilty of the higher degree (naming it), but guilty of any degree inferior to that charged in the indictment or information.” So that clearly under this indictment, charging theft privately from the person, was included the offense of an attempt to commit theft from the person, and the court correctly submitted that question to the jury for its finding.

Our statute (article 754, C. C. P.) prescribes : “The jury, after having retired, may ask further instruction of the judge touching any matter of law. " For this purpose, the jury shall appear before the judge, in open court, in a body, and through their foreman shall state to the court, either verbally or in writing, the particular point of law upon which they desire further instruction; and the court shall give such instruction in writing, but no instruction shall be given, except upon the particular point on which it is asked.” This statute is shown to have been literally complied with in this case. Notwithstanding the court had submitted this question to the jury for a finding in an original charge, yet it is shown by the-qualification of the judge to appellant’s exception to said special charge in answer to-said question by the jury that “defendant’s counsel had argued to the jury that they could convict the defendant only of the offense of theft from the person under the first count in the indictment, which evidently had confused the jury, and therefore they asked for further instructions, and the court gave said further instructions, as above set out.”

This court, in the recent case of Harrison v. State, 153 S. W. 144, in considering said article 754, said: “The statute above quoted makes it his [the judge’s] duty to instruct the jury on the particular question they ask and while the statute says that no instruction' shall be given, except upon the particular point upon which it is asked, it does not mean, and has not been construed by thia court to mean, that because thereof the court cannot at that or any other time before the verdict correctly charge the jury on any matter thought necessary or proper by him. Neither does this statute mean that the court must give the shortest possible answer to-such a question, as he might have done in this case by the one word, ‘No,’ or the one word, ‘Yes’; but it would be proper as was done in this case, to briefly and succinctly tell the jury correctly what to do in consideration of the question propounded by the jury and answered by the court.”

In this case we think it was proper for the court, in answering the question propounded by the jury, to give such charge as was given, and that it was not upon the weight of the testimony, as claimed by appellant. There is nothing else necessary to discuss.

The judgment will be affirmed.  