
    RIDDICK v. STATE.
    (No. 4958.)
    (Court of Criminal Appeals of Texas.
    April 17, 1918.)
    1. Ijaeceny &wkey;>71(l) — Intent — Drunkenness.
    Intent being necessary in larceny, the question thereof, raised by the evidence, should he submitted, notwithstanding defendant’s drunkenness.
    2. Larceny <&wkey;44 — Inteno^-Evidence.
    As bearing .on defendant’s intent, evidence that, shortly after it was claimed he took a watch from D., he came into a café with the watch in his hand, asking about D., and stating that the watch belonged to D., and that he wanted to find him for the purpose of returning it, is admissible.
    Appeal from District Court, Bowie County; H. F. O’Neal, Judge.
    W. B. Riddick was convicted of theft from the person, and appeals.
    Reversed and remanded.
    Joe Hughes and Mahaft'ey, Keeney & Dalby, all of Texarkana, for appellant. E. B. Hendricks, Asst. Atty. Gen., for the State.
   DAVIDSON, P. J.

Appellant was convicted of theft from the person and given two years in the penitentiary.

The state’s case, in a sense, is one of circumstantial evidence; yet the facts make the taking by appellant, if it occurred, so close to the transaction that under the decisions it may not have been necessary to charge upon that issue. The state’s witness, who they nicknamed “Dad,” states he was leaning against one of the pillars of the bank, and appellant came to him in a drunken condition, and leaned up against him for a moment or so, and went away; that directly after appellant departed he discovered that his watch was taken. He fixes the time as being between 3:35 and 3:20 o’clock in the evening, by circumstances indicating that he could hardly be mistaken as to the time. Just after 3:30 o’clock a witness testifies that appellant, in a drunken condition, was in his café and had a watch and some money in his hand. This watch is perhaps sufficiently identified as that taken from the witness “Dad.” Appellant testified that he was drunk, as did the other witnesses, and that if he took the watch from the prosecuting witness he was not aware of it, and had no recollection of it. In fact, he testified he had no recollection of seeing the prosecuting witness the evening the watch was taken. Shortly afterward he was found in a house in the town where this offense occurred in a drunken stupor and asleep, and was arrested by the officers. The watch was taken from appellant by his brother shortly after the prosecuting witness lost it, and by the brother pawned for the sum of $5.- It is shown by appellant and the brother both that this was not authorized by the defendant; appellant claiming, in fact, he had no knowledge of it. The court charged the jury with reference to temporary insanity produced by the voluntary recent use of intoxicants, relegating this to mitigation of punishment.

Appellant asked a special charge, requesting the court to instruct the jury with reference to fraudulent intent, and that, if he had no fraudulent intent at the time of the taking, even if he did take the watch, then the jury should acquit. This question was raised by the testimony, and should have been submitted to the jury; and this, whether he was drunk or sober. Intent is necessary in theft, and a charge should be given when it is an issue.

There is a bill of exceptions reserved to tlie ruling of the court rejecting testimony. By the owner of the café appellant proposed to prove that, when he came, in the café with the money and watch in his hand, he was asking about the prosecuting witness, making a statement to the effect that the watch he had belonged to prosecuting witness, and he wanted to find him for the purpose of returning it. This was excluded, and we think erroneously. The fact that he had the watch, and that the state relied, upon the fact he had taken it from prosecuting witness, it occurs to us, should have admitted the testimony of his handling the watch after taking it, and what he was doing with it, as bearing upon his intent.

Eor the reasons indicated, the judgment will be reversed, and the cause remanded.

PRENDERGAST, J., absent. 
      <&wkey;For other cases see same topic ana KBY-NUMBBK in all Key-Numbered Digests and Indexes
     