
    McCOLLUM v. STATE.
    (No. 7331.)
    (Court of Criminal Appeals of Texas.
    Jan. 17, 1923.)
    Í. Larceny <@=36 — Proof of vale® essentia! to convict for theft.
    Proof of value is essential to sustain a conviction of theft, under Pen. Code 1911, art. 1330.
    2. Larceny ⅞=>59 — Evidence held insufficient to show value.
    Evidence in a prosecution for theft held not sufficient to show fraudulent intent to deprive owner of anything of value, or that in fact anything of value bad been appropriated.
    Appeal from Floyd County Court; W. B. Clark, Judge.
    O. R. McCollum was convicted of theft, and appeals.
    Reversed and remanded.
    Williams & Martin, of Plainview, for appellant.
    R. G. Storey, Asst. Atty. Gen., for the State.
   MORROW, P. J.

The conviction is for theft, a misdemeanor; punishment fixed at a fine of ⅞10 and confinement in the county jail for 10 hours.

As described in the indictment, the alleged stolen property consisted of two sacks of the value of 10 cents each and grass seed contained in- said sacks of the value of $5. The evidence reveals that the elevator in which one Watson had some grass seed stored caught fire; that, while parts of the building were burning, some persons made a hole in the east side of the building which permitted some of the grass seed to run out; and that the appellant and others procured some sacks and allowed the grass seed to run into the sacks, which were then carried by the appellant and others some distance to a place of safety. During this procedure some of the grass seed fell on the ground and in a ditch and became mixed with trash and- dirt, some of which was thrown by some one in a wagon; that, after the fire had progressed to a degree that no more of the seed in the house could bo saved, the appellant caused to be put in sacks some of tlie seed which was in the ditch and mixed with trash with the idea thg.t lie might use it for chicken feed. Watson, the owner, was present, though he gave-no specific consent to the taking of the trashy seed by the appellant. Appellant, in taking the seed, acted openly in the presence of a number of people, and he testified that he had no idea of depriving the owner of anything of value. Watsoh said that he treated all of the damaged seed as worthless, including that mixed with the trash and in settling with the insurance company, the adjuster who represented the inshrance company regarded this trashy seed as worthless and settled with Watson upon the theory that all of the damaged seed, as well as that mixed with the trash, was valueless and a total loss. We find no evidence as to the ownership or value of the sacks.

We regard the judgment unsupported by the evidence, in that it does not appear that the appellant took the seed with any fraudulent intent to deprive the owner of anything of value, nor does it appear that he was depriving him of anything of value. The amount of seed that was put in the sacks was not revealed; the value is not disclosed, the only evidence upon the subject being that the seed mixed with the trash was valueless, and that which was unm-ixed with trash, unburned, and in good condition, was worth about 3 cents per pound. The undisputed evidence shows that the seed which appellant took was scraped up off the ground in the same manner as that which was thrown in the wagon and which, according to the evidence, was of no value. To say the least, the value of the seed taken was not proved. In an offense of tills class, the proof of value is essential. The statute so declares. See Penal Code, art. 1330; also, Vernon’s Tex. Crim. Stat. vol. 1, p. 866; Radford v. State, 35 Tex. 15; Lunn v. State, 44 Tex. 85; Ruling Case Law, vol. 17, p. 65, § 71.

The judgment is reversed, and the cause remanded. . 
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