
    ARMSTRONG v. STATE.
    (No. 10636.)
    Court of Criminal Appeals of Texas.
    Feb. 23, 1927.
    Rehearing Denied April 20, 1927.
    1. Indictment and information <&wkey;!32(2) — State could elect to prosecute taking of automobile casings, rims, and inner tubes as theft, instead of malicious mischief (Pen. Code 1925, arts. 1346, 1410).
    Where defendant was indicted for unlawfully and fraudulently taking automobile casings, rims, and inner tubes, state could elect to prosecute for theft thereof, under Pen. Code 1925, art. 1410, instead of for malicious mischief, under article 1346.
    On Motion for Rehearing.
    2. Larceny <&wkey;l — One fraudulently removing from automobile property enumerated in statute may be prosecuted for “theft” (Pen. Code 1925, arts. 1341, 1346, 1410).
    In view of legislative history of Pen. Code Í925, arts. 1341, 1346, one who removes from an automobile property enumerated in article 1346, with fraudulent intent to appropriate them and deprive owner of value thereof, may be prosecuted for theft thereof under Pen. Code 1925, art. 1410.
    [Ed. Note. — For other definitions, see Words and Phrases, First and Second Series, Theft.]
    3. Statutes <&wkey;206 — Courts must construe various articles of statutes., so as to give effect to all of them.
    It is the court’s duty to construe various articles of the statutes in such way as will give effect to all of them, if it can be done without violence to statutory construction.
    4. Larceny <&wkey;2 — There is no conflict between . theft statute and statute denouncing fraudulent taking o<f automobile parts, which prevents each from being operative (Pen. Code 1925, arts. 1346, 1410).
    There is no conflict between Pen. Code 1925, art. 1410, the general theft statute, and article 1346, denouncing the fraudulent taking of automobile parts as malicious mischief, which prevents each article from being operative for protection of property designated under article 1346; offense committed depending on the facts of the particular case.
    Commissioners’ Decision.
    Appeal from District Court, CoryeR County; Joe H. Eidson, Judge.
    Stony Armstrong was convicted of misdemeanor theft, and he appeals.
    Affirmed.
    T. R. Mears, of Gatesville, for appellant.
    Sam D. Stinson, State’s Atty., and Robt. M. Lyles, Asst. State’s Atty., both of Austin, for the State.
   BETHEA, J.

The appellant was Indicted, and tried for felony theft, and convicted of misdemeanor theft, and his punishment assessed at confinement in the county jail for six months and a fine of $250.

The charging part of the indictment under which appellant was tried and convicted reads as follows:

“Did then and there unlawfully and fraudulently take one Dunlop balloon automobile casing, of the value of fifteen dollars, and two Fisk balloon automobile casings, of the value of fifteen dollars each, totaling thirty dollars, three automobile rims, of the value of one dollar each, totaling three dollars, and three automobile inner tubes, of the value of two dollars each, totaling six dollars, the value of all of the said articles aggregating fifty-four dollars, the same being then and there the corporeal personal property of and belonging to L. E. Hawkins, from the possession of said L. E. Hawkins,” etc.

We have examined the statement of facts carefully and find the same amply sufficient to sustain the verdict of the jury. The only defense made by the appellant and the only evidence offered was testimony tending to show the aggregate value of the property alleged to have been stolen to be under the value of $50. Inasmuch as the appellant was convicted of misdemeanor theft, the question of felony theft passes out of the case.

Appellant, by a motion to quash the indictment and also by bills of exception Nos. 1 and 2, raises the question as to whether or not the appellant should have been indicted and tried under article 1346 of the Penal Code, instead of article 1410, the general theft statute. The offense denounced under article ,1346 is an entirely separate and distinct offense from that of theft. The offense established by the proof in this case against the appellant was theft. The offense denounced in article 1346 is malicious mischief. The malicious and willful removal from any motor vehicle or bicycle, etc., of any tire, rim, etc., without authority from the owner and unlawfully, would constitute a violation of the law under said article 1346; but when the facts go further, as they did in this case, and show a fraudulent design to appropriate the property to the use of the offender, and deprive the owner of the value of the same, the offense assumes the graver character of theft, and, if the value of the property be under $50, is punishable by confinement in the county jail and by fine or by confinement in the county jail alone. The state had the right to elect to prosecute for the theft of the articles instead of prosecuting for the offense under article 1346.

There being no errors in the record, the judgment of the trial court is affirmed.

PER OURIAM. The foregoing opinion of the Commission of Appeals has been exam-' ined by the judges of the Court of Criminal Appeals and approved by the court, ■

On Motion for Rehearing.

HAWKINS, J.

Appellant renews his contention that article 1346, P. C. 1925, supplanted article 1410, P. C. 1925, in punishing one for theft of parts and automobile accessories named in article 1346, which reads as follows:

“Whoever shall maliciously or willfully and without authority from the owner unlawfully remove from any motor vehicle or bicycle any portion of the running or steering gear, pump, or any tire, rim, robe, cover, tube, clock, casing, radiator, fire extinguisher, tool, lamp, starter, battery, coil, spring, gas or oil tank, bell or any signal device, speedometer, license number, horn, box, basket, trunk or earner, shield, hood, oil-er, gauge, chain or any device, emblem or monogram thereon, or any attachment, fastenings or other appurtenances or any other part attached to such vehicle which is necessary in the use or operation thereof, or whoever knowingly buys, receives or has in his possession any of said articles or any part thereof so unlawfully removed, shall be fined not exceeding one hundred dollars, or be imprisoned in jail not less than six months nor more than one year.”

It is appellant’s contention that one who removes from an automobile any of the parts or accessories named in said article cannot be prosecuted for theft, but. that said article 1346 is a special statute'relating to the taking of the property mentioned therein, which is controlling. We are referred to Acton v. State, 104 Tex. Cr. R. 75, 282 S. W. 805, and Duffield v. State, 103 Tex. Cr. R. 631, 282 S. W. 807. The prosecution in those cases was under what is now article 1346. The point made was that the Legislature (Acts 1917, p. 484, § 83), by passing what is now article 1344, P. O. 1925, had repealed article 1346, which was enacted in 1913. The question here raised was not involved or considered in those cases. The history of articles 1346 and 1341 as now found in the Code will throw some light on the question now before us, and aid in arriving at the intention of the Legislature and codifiers.' In 1913 the Legislature (chapter 100, p. 187) enacted a law, which in section 1 embraced what is now article 1341 and in section 2 embraced what is now article 1346. The language then employed, however, was much different from that now found in said articles. Section 1 began with the words “Whoever shall steal or purposely takes,” etc., and section 2 began with the words “Whoever shall maliciously or with mtent to steal,” etc. So far as we are advised, this court was never called on to construe section 2 under its original wording. Section 1 as originally passed, however, was construed in Sparks v. State, 76 Tex. Cr. R. 263, 174 S. W. 351, wherein it was held that the use of the word “steal” therein had the effect of denouncing the theft of an automobile as a misdemeanor, regardless of its value.

At the time this opinion was delivered the Legislature was in session. It immediately amended said section 1 (Acts 1915, p. 160) and omitted the words “shall steal.” In Hunt v. State, 89 Tex Cr. R. 89, 229 S. W. 869, this court construed said section as amended, and held that it no longer denounced the taking or using of an automobile under the circumstances mentioned in said section as theft. Section 2 seems to hare remained on our statute books in its original wording until changed in the recodification of 1925 to its present form in article 1346. The codifiers omitted therefrom the words “with intent to steal,” and inserted the word “willfully” therein, by such change making it conform to the Legislature’s act with reference to section 1 and also to the holding in Hunt’s Gase, supra. The change in article 1346 brings a violation of it clearly within the domain of “malicious mischief.” This was evidently the understanding of the codifiers, as we find said article under the chapter of the Penal Code dealing with offenses so classed.

Appellant further urges that the latter part of article 1346, making guilty one who “knowingly buys, receives or has in his possession any of said articles * * * unlawfully removed” from an automobile is inconsistent with any other idea than the fraudulent removal of them and the further purpose to deprive the owner of their value, and that this wording shows it to have been either the obvious intent of the Legislature, or a necessary result, that one who might steal the property mentioned in article 1346 should be prosecuted for malicious mischief. We think such implication does not necessarily follow from the language used. One might “knowingly buy, receive or be in possession” of articles which were maliciously and wantonly removed from an automobile in the absence of any fraudulent intent to steal them at the time of their removal; hence no theft by the party removing, nor receiving of stolen property by the one who buys or receives it. We conclude that one who removes from an automobile the property enumerated in article 1346 with the fraudulent intent to appropriate them to his own use and to deprive the owner of the value may be prosecuted under the general theft statute (article 1410), and that appellant’s contention to the contrary should not be sustained. Jordan v. State (No. 10372) 295 S. W. -, opinion March 9, 1927. It is believed that this announcement is not in conflict with the holding in Busey v. State, 87 Tex. Cr. R. 23, 218 S. W. 1048, regarding article 1349, P. G. 1925, With reference to taking fruit, melons, etc., from the farm, orchard, or garden. The history of that statute was traced in Espalin v. State, 90 Tex. Cr. R. 625, 237 S. W. 274. The offense denounced in said article 1349 and the class of property designated, together with the wording of the statute, caused us to reach the conclusion announced in the two cases last mentioned.

It is the duty of the court to construe the various articles of the statute in such way as will give effect to aU of them, if it can be done without violence to statutory construction, and an effort to do this has led us to the conclusion that there is no such conflict between articles 1346 and 1410 as will prevent each being operative for the protection of property designated under article 1346; the offense committed depending on the facts of the particular case.

Appellant’s motion for rehearing is overruled. 
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