
    SESSIONS v. STATE.
    (No. 8874.)
    (Court of Criminal Appeals of Texas.
    April 15, 1925.
    Rehearing Denied June 24,1925.)
    1. Larceny (®=3|0 — Lost property in constructive possession of real owner.
    Lost property stolen is in constructive possession of real owner.
    2. Larceny <3=^3 (2) — Finder of lost property must have intended to steal it to be guilty of theft.
    Finder of lost property, to be guilty of theft, must have intended to steal it at time of taking.
    3. Criminal law <§=>1036(8) — Conviction supported by any evidence of intent to steal lost property .affirmed, in absence of request for charge more specifically pointing out necessity of proving intent.
    In absence of request for charge more specifically directing jury’s attention to necessity of proving intent to steal lost property at time of taking, conviction of theft, supported by any evidence of such intent, must be affirmed.
    On Motion for Rehearing.
    4. Larceny <§=>10 — Taking of lost property on finding it, with intent to defraud owner and appropriate it to finder’s use, is theft.
    Under Pen. Code 1911, art. 1329, washerwoman taking possession of money, on finding it in clothes received for washing, with intent to defraud owner and appropriate it to finder’s use, is guilty of theft, but, in abs.ence' of such intent when money was discovered and taken, no subsequent intent to steal it would make the taking theft.
    5. Larceny <§=>55 — Conviction of theft of money found by defendant held sustained by evidence.
    Evidence held sufficient to sustain conviction of washerwoman for theft of money found by her in clothes received for washing.
    6. Criminal law <§=5|038(I) — Submission of theft ease on general charge, not embracing theft of lost property, held not reversible error.
    Submission of theft case on charge, applicable to theft generally, and not embracing theft of lost property, held not reversible error, in absence of objection to charge or request for special charges.
    7. Larceny <§=>32 (3) — Ownership of stolen community property, lost by wife, held properly alleged in husband.
    Ownership of stolen community property, of which wife unwittingly surrendered actual possession to defendant, without latter’s knowledge until subsequent discovery thereof, held properly alleged in husband, who was in constructive possession.
    Appeal from District Court, Panola County; Chas. L. Brachfield, Judge.
    Mamie Sessions was convicted of theft and appeals.
    Affirmed.
    Long & Strong, of Carthage, and Walter C. Woodward, of Coleman, .for appellant.
    
      ' Tom Garrard, State’s Atty., and Grover C. Morris, Ass’t State’s Atty., both of Austin, for the State.
   MORROW, P. J.

The offense is theft; punishment fixed at confinement in the penitentiary for a period of two years.

According to the testimony of Lake, after collecting $140 in money, he handed it to his wife with the request that she call his attention to it on his first trip to town so that he might take the money with him and deposit it in the bank. She placed the money in a little sack and pinned it to her dress, where she kept it for a week or more. The appellant, a negro woman, did not live at the home of Lake, but came there and did the washing for his family. She came to his home upon a oertain day, took the soiled clothes to another place, and washed them. During the day, Mrs. Lake missed' the money. She went immediately -to the field where her husband was working and told him about it. He went to the appellant and taxed her with the taking of the money. After calling upon him to describe it, appellant conducted him to the bed in her house, where she revealed the money under the cover. In her testimony the appellant explained the possession of the money with the statement that just as she had completed the washing, she noticed a sack containing money floating on the water in the tub and- took it home with her.

The indictment was found under article 1329 of the Penal Code, and charged the taking from W. C. Lake without his consent. Upon this theory the jury was instructed in the charge of the court, against which there were directed no objections.

It is insisted, however, that the conviction should not stand, for the reason that the ownership of the money was not in Lake but in his wife, that it was in her possession, and that the care, control, and management of it was in her.

Reference is made by the appellant’s counsel to many cases discussing the subject of ownership in cases of theft, notably the early ease of Frazier v. State, 18 Tex. App. 434, in which the announcement is definitely made that by ownership in cases of theft, as referred to in the statute, is meant the person who has possession of the property as well as its care, control, and management. The principles, however, controlling in the present ease are those which have application to theft of property of the husband and wife. Without going into a discussion of the reasoning upon which the decisions are founded, from the precedents in this state the rule is deduced that, where the stolen property is owned by the husband arid wife jointly as community property, and where the spouses are living together, the ownership should be laid in the husband. Wilson v. State, 3 Tex. App. 209; Merriweather v. State, 33 Tex. 790; Lucas v. State, 36 Tex. Cr. R. 397, 37 S. W. 427; Jones v. State, 47 Tex. Cr. R. 126, 80 S. W. 530; Branch’s Ann. Tex. P. C. § 2438, subd. 3. See, also, Greenwood v. State, 84 Tex. Cr. R. 548, 208 S. W. 662; Peoples v. State, 90 Tex. Cr. R. 236, 234 S. W. 394.

In exceptional cases, as where the spouses are not living together, or where the husband is absent, it has been, held permissible to lay the ownership in the wife. See Miles v. State, 51 Tex. Cr. R. 587, 103 S. W. 854; Lane v. State, 69 Tex. Cr. R. 65, 152 S. W. 897; Childress v. State, 92 Tex. Cr. R. 215, 241 S. W. 1029.

The suggestion is made in the brief that the circumstances under which the property came into the possession of the appellant bring it within the rule applicable to the theft of lost property. Even if this be conceded, we fail to perceive its advantage to the' accused in the present case. So far as the matter of ownership is involved, that of lost property is in the constructive possession of the real owner. Martin v. State, 44 Tex. Cr. R. 538, 72 S. W. 386; Greenwood v. State, 84 Tex. Cr. R. 548, 208 S. W. 662. As applied to the present case, the real ownership was in W. C. Lake and his wife, and the proper averment'was to lay the ownership in W. C. Lake. Conceding the property to be lost property, the finder of it, in order to be guilty of theft, must at the time of the taking have had the intent to steal it.' See Reed v. State, 8 Tex. App. 42, 34 Am. Rep. 732, and numerous other cases collated in Branch’s Ann. Tex. P. C., § 2499. In the present case, the facts are not wanting to support such a conclusion, and there was no request for a charge bringing to the attention of the jury more specifically the necessity of proof of such intent.

We find no error, and the judgment is affirmed.

On Motion for Rehearing.

HAWKINS, J.

The • evidence shows that the money was in the clothes which Mrs. Lake delivered to appellant to wash. There is nothing to indicate that appellant knew of the presence of the money at the time she received the clothes,' but is all to the contrary. She carried the clothes to the residence of a daughter of Mrs. Lake, and while there washing them discovered the money in the sack floating in the washtub. It is contended that the money came into appellant’s possession lawfully, and that no subsequent intent to appropriate it would constitute theft. If there was a ‘‘fraudulent taking” of the money in contemplation of the statute denouncing theft (article 1329, Pen. Code), it did not occur when the money was delivered to appellant in the laundry, because appellant knew nothing of its presence, therefore could have entertained at that time no intent with reference to it one way or the other. The “taking” of the money occurred when she discovered its presence in the washtub. If, upon finding the money, appellant took possession of it with the intent then to defraud the owner of it and to appropriate it to appellant’s bwn use, it would be theft. If the intent to steal did not exist at the time the money was discovered and taken by appellant, no subsequent intent to steal it would make the taking upon its discovery theft. Reed v. State, 8 Tex. App. 42, 34 Am. Rep. 732; Robinson v. State, 11 Tex. App. 409, 40 Am. Rep. 790; Landreth v. State, 53 Tex. Cr. R. 556, 110 S. W. 905; and many other cases collated under section 2499, Branch’s Ann. P. C.

We cannot agree with appellant that the facts do not support a finding of guilt under the principles just stated. When Mrs. Lake missed the money, she reported it to her' husband. When he accosted the appellant about it, she told him she know nothing about the money; that if she had gotten it she would have given it to his wife. or daughter. She continued to deny knowledge of the money for more than an hour, until finally she took Lake to her home and from the middle of the bed she got the money and delivered it to him.

It is urged that the conviction should not be permitted to stand because the court submitted the case upon a charge applicable to theft generally and not as to theft of lost property. The charge would have been more pertinent under the facts if it had embraced the latter idea, following the charge approved in Hutspeth v. State, 79 Tex. Cr. R. 650, 187 S. W. 340. We would note, however, that no objection was made to the charge as submitted, and no special charges upon this or any other subject were requested.

It is asserted that, if the announcement in Miles v.' State, 51 Tex. Cr. R. 587, 103 S. W. 854, is the law and to be followed, the facts of this case do not support the allegation of possession in Mr. Lake, hut show possession in Mrs. Lake. We think a clear distinction exists between the Miles Case and the present one. The facts in the Miles Case were as follows: Mr. Schumacker had telephoned his wife to bring his pocketbook to him; she stopped on the way to do some shopping, leaving the pocketbook in the car; Miles stole it from the car. It was held that under those_ facts ownership and possession were properly alleged in the wife. The property was taken from her actual possession. Not so in the present case. Mrs. Lake had surrendered actual possession' of the money to appellant, unwittingly it is true, but a fact nevertheless, but a fact not known to appellant until she discovered the money in the tub. Where property belonging jointly to the husband and wife is stolen, ownership and possession ordinarily may be alleged in the husband. See authorities cited in original opinion. When the theft of such property occurs at a time when it is lost and is in the actual possession of neither the husband nor the wife, we think ownership may be properly alleged in the husband; he being in constructive possession thereof.

The motion for rehearing is overruled. 
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