
    Louis Smith, alias B. C. Johnson, v. The State.
    No. 23126.
    Delivered May 16, 1945.
    
      The opinion states the case.
    
      W. E. Pinkston, of Dallas, for appellant.
    
      Ernest S. Goens, State’s Attorney, of Austin, for the State.
   DAVIDSON, Judge.

Automobile theft is the offense; the punishment, two years in the penitentiary.

Appellant was employed by the Dallas Packard Company as a porter and wash-rack boy. The morning of June 2, 1944, without the knowledge or consent of any person, he drove from the place of business an automobile belonging to the company. About 5:30 o’clock that afternoon while joy-riding with his sweetheart, he had a collision with or ran the automobile into a switch engine. The automobile was not sufficiently damaged to prevent further driving. Some two hours after the collision the automobile was found by policemen where it had been abandoned some five or six miles from the business district of the city of Dallas.

The sufficiency of these facts to support the conviction is challenged by appellant. This is the sole question presented for review. It is insisted that such facts show a temporary taking only, which was the defensive theory as shown by appellant’s testimony.

In cases of this character, the fraudulent intent with which the property is taken is an essential element. It was the province of the jury to determine from the facts and circumstances the existence of that intent. We would not be authorized to say, as a matter of law, that the facts here presented did not warrant the jury’s conclusion, especially in view of the pertinent instruction upon the defensive theory of a temporary taking. Emanuel v. State, 112 Tex. Cr. R. 412, 16 S. W. (2d) 1083.

The facts are deemed sufficient to support the conviction, and the judgment is affirmed.

The foregoing opinion of the Commission of Appeals has been examined by the Judges of the Court of Criminal Appeals and approved by the Court.  