
    JORDAN v. STATE.
    (No. 10372.)
    Court of Criminal Appeals of Texas.
    March 9, 1927.
    Rehearing Granted ¿Tune 24, 1927.
    1. Larceny <&wkey;2 — Statute making it misdemean- or to remove parts of automobile does not repeal theft statute, in which intent to deprive owner and appropriate property to taker’s use are elements of offense (Pen. Code 1925, arts. 1346, 1410).
    Pen. Code 1925, art. 1346, making it a misdemeanor maliciously to remove parts of automobile, does not repeal article 1410, in which elements of the offense are fraudulent taking without owner’s consent, with intent to deprive him of value and appropriate the thing taken to the taker’s use.
    2. Larceny <&wkey;>12 — State must prove intent to deprive owner of value and appropriate thing taken, under theft statute (Pen. Code 1925, art. (410).
    To convict, under Pen. Code 1925, art. 1410, the state must prove fraudulent taking with the intent to deprive the owner of the value of the thing taken and appropriate it to the taker’s use.
    
      3. Abandonment <&wkey;3 — “Abandonment” means absolute relinquishment, including both intent and act.
    “Abandonment” means an absolute relinquishment, including both the intention to abandon and the external act by which the intention is carried into effect.
    [Ed. Note. — For other definitions, see Words and Phrases, First and Second Series, Abandon —Abandonment.]
    4. Abandonment &wkey;*6 — Abandonment is question for jury, where evidence raises issue.
    When the evidence is such as to raise the issue, abandonment is a question for the jury.
    On Motion for Rehearing.
    5. Larceny <&wkey;7l(l) — Whether one taking parts from dismantled automobile in creek and attempting to sell them believed car abandoned held for jury (Pen. Code 1925, art. 1410).
    Whether accused, taking from automobile in creek, which had stood on highway for 10 days and had been partly dismantled, radiator, generator, and starter, and attempting to sell them, believed car abandoned and took the articles without intent to steal, within Pen. Code 1925; art. 1410, held for jury.
    6. Larceny &wkey;3( I) — Refusal to instruct ao- ' quittal, if accused believed automobile abandoned from which he took parts, held error (Pen. Code 1925, § 1410).
    Refusal of instruction, in prosecution for misdemeanor theft, under Pen. Code 1925, § 1410, to acquit, if accused believed automobile abandoned and took parts without intent to steal, held erroneous.
    Appeal from Nacogdoches County Court; A. T. Russell, Judge.
    Slim Jordan was convicted of misdemean- or theft, and he appeals.
    Reversed and remanded.
    Seale & Denman, of Nacogdoches, for appellant.
    Sam D. Stinson, State’s Atty., and Robt. M. Lyles, Asst. State’s Atty., both of Austin, for the State.
   MORROW, P. J.

The conviction is for misdemeanor theft; punishment fixed at a fine of $10 and confinement in the county jail for a period of 10 days.

The motion to quash the indictment is founded upon the theory that the facts averred bring it within the terms of article 1346, P. C. 1925, a malicious mischief statute, and exempts it from the operation of article 1410, P. C. 1925, a theft statute. Article 1346 does not repeal article 1410. Under article 1410, supra, the fraudulent taking without the owner’s consent, with the intent to deprive him of its value and to appropriate it to the use of the taker, constitute the elements of the offense. In article 1346, the offense is committed by the malicious or willful taking or removing without authority of certain parts or equipment of an automobile. This statute denounces such taking or removing as a misdemeanor, although there was no attempt to appropriate the property to the benefit of the taker or to deprive the owner of its value. In the present case, the state having charged the fraudulent taking with the intent to deprive the owner of the value thereof, thereby bringing the complaint and information under the terms of article 1410, supra, it is obligated to prove the facts establishing the offense of theft.

Emery Sutphen was the owner of a Ford automobile. According to his testimony, about the last of November, it was burned and left along the road side, where it remained for about 15 days. It was left there in order that an insurance adjuster might examine it.

According to the witness Chandler, a garage man, about the first of December, appellant brought to his place of business a radiator, generator, and self-starter, and offered them for sale. They were worth about $20. Appellant at first asked $25 and finally $18, and the witness agreed to buy them at the price last mentioned.

The testimony of the witnesses introduced by the appellant 'indicated that before the parts were finally removed the car had remained on the road side for about a month. Appellant testified in his own behalf that he was about 30 years of age; that he observed an automobile standing by the road side; that it had been there for about two weeks; that it was stripped of its casings and some other parts; about 3 days later, he returned and noticed that the cylinder head was gone, and, thinking that the car was junk, removed the radiator, generator, and self-starter, and took them to his home; this occurred in the daytime; he had no intention of stealing them and believed that the car had been thrown away; he later tried to sell the parts to Chandler.

Appellant takes the position that the court was in error in failing to instruct the jury that, if the appellant believed the car to have been abandoned by the owner, he would not be guilty.

“Property which has been thrown away and abandoned becomes no man’s property. The former owner loses his title and all claim to it, and one who finds it can claim it as his own. Hence property which has been abandoned is not the subject of larceny.” 17 Ruling Case Law, p. 36.

“Abandonment” means an absolute relinquishment; a giving up; a total desertion. 1 Corpus Juris, p. 5. See Dikes v. Miller, 24 Tex. 417; Worsham v. State, 56 Tex. Cr. R. 253, 120 S. W. 439, 18 Ann. Cas. 134; Sikes v. State (Tex. Cr. App.) 28 S. W. 688. Abandonment includes both the intention to abandon and the external act by which the intention is carried into effect. See 1 Corpus Juris, p. 7. • When the evidence is such as to raise the issue, abandonment becomes a question ior the jury. See 1 Corpus Juris, p. 12, and cases collated in note 76.

Touching the circumstances from which the jury would he authorized to infer an abandonment, there are many illustrative cases collated in 1 Corpus Juris, p. 9, note 55; also page 7, notes '37 and 38. Many of these are civil cases involving the title to property. In the reports of the decisions of this court, we find but two in point. One of these is Sikes v. State, 28 S. W. 688, in which the opinion was written by Judge Hurt. The evidence showed that two turbine water wheels had lain upon the railway right of way without use or interference for 9 years. They belonged to one Beveridge, to whom they had been shipped from Arkansas. After remaining upon the platform of the depot for awhile, .the wheels were removed by Bev-eridge to the right of way. He had no intention of parting with the title to them. The station agent at Round Rock, at the request of the appellant, shipped the wheels to him at Houston. Beveridge had not taken the wheels away from the depot because his mill had been washed away and he had no immediate use for them. On this state of facts, Sikes was held guilty of theft.

In Worsham’s Case, 56 Tex. Cr. R. 253, 120 S. W. 439, 18 Ann. Cas. 134, the opinion was written by Judge Ramsey ana the judgment was affirmed. One of the points of attack upon the conviction was the failure of the court to charge the jury upon the issue of abandonment. The facts were these: While engaged in a game of cards with the appellant and another, one Logan executed his check in favor of the appellant for $75. Appellant lost in the game and delivered the check to one Perkins. Logan gave Perkins his check for $125, thereby redeeming the $75 check and getting $50 in money. Logan then wadded up the $75 check which he had thus redeemed and threw it on the floor. Wor-sham afterwards found it on the floor and attempted to have it cashed. The court held that there was no error in refusing to charge on the issue of abandonment.

There is no great similarity in the facts in either of these cases with those in the instant case. The principles that control are not dissimilar. Sutphen’s ear was disabled so that it could not be rejnoved on its own power. He left it beside the road intending to have it inspected by an insurance agent. Some of its parts were usable and valuable and were, after the car had remained beside the road but a comparatively short time, removed by the appellant with the purpose of selling them and realizing on their value, thereby depriving the owner thereof. We fail to perceive any fact which would warrant the inference or belief on the part of the appellant that the owner of the car had parted with the title to it. He was not standing guard over it. It was not a thing that he could carry about his person. The parts which the appellant removed from it were attached to it. He had to use a monkey-wrench in detaching them. We are, therefore of the opinion that the court was not in error in refusing to read to the jury the charge requested.

The judgment is affirmed.

On Motion for Rehearing.

•. HAWKINS, J.

Appellant urges that we were not authorized under the facts in making the statement found in our original opinion that:

“We fail to perceive any fact which would warrant the inference or belief on the part of the appellant that the owner of the car had parted with the title to it.”

We have examined more critically the evidence on this point and are led to believe that appellant is not without grounds upon which to challenge the conclusion stated.

Appellant requested the following special charge, which was refused:

“You are charged as part of the law in this case that, although you may believe from the evidence beyond a reasonable doubt that defendant took the property alleged in the complaint and information, yet if you further believe from the evidence that at the time defendant took said property he believed same to have been abandoned by the owner, you will acquit the defendant.”

Does the evidence raise the issue presented in the refused charge? The car belonged to Sutphen. Smith held some notes against the car. The car caught fire and burned oh the road while Sutphen was driving it. This was on Tuesday. It was left by him on the side of the road near a creek. He reported the burning to Smith, who directed Sutphen to let the car remain where it was until the insurance adjuster came. On Saturday the owner went back to the car and discovered that the cylinder head and two pistons had already been removed. It was not claimed that appellant took them. Upon making the discovery that these things were gone, no effort was made to protect the ear from further dismantling, but it was still left unprotected on the roadside. ■ Sutphen himself removed the casings. The evidence from witnesses who traveled the road was to the effect that the car remained partly in the road for several days and was then pushed out of the road, and about a week later was pushed onto the bluff near the creek, and still later it was pushed in the creek. The witnesses observed parties at different times working about the car, apparently removing parts therefrom. It is not contended that appellant had anything to do with moving the ear on these occasions or in taking any parts off the car, save those charged in the information and complaint. Appellant testified as follows:

“I observed this car on the side of the road. I was going to see my brother one Sunday. The car had been there about two weeks then, X think. The casings were not on it then. There was nothing to it much. Most everything was gone. I did not get anything then. Xn about 3 days I went back. I looked at the car and noticed that the cylinder head was taken off and two rear wheels were gone. The radiator, generator, and starter were on. It was standing on the side of the road and I thought it was junk. The next time I saw it, it was in the creek. I went home and got a wrench and took these parts. I just thought it had been thrown away and knew if it rained they would be ruined. I did not know whose it was. It had been there about 10 days. I don’t know how much longer. I took these parts home. Emory asked me about these parts, and I told Mm that I had them. I got them in the day. One afternoon about 3 o’clock. It was about 50 steps from the public road, right out in view of people passing. I don’t know who put it in the creek. I hadn’t seen any one fooling with it. I did not intend to steal these parts. I saw the old car there and thought it had been thrown away.”

The evidence of appellant may be looked to in connection with other testimony in the case to determine whether it raised the issue of belief on his part that the car had been abandoned. It is apparent from appellant’s testimony that the car had been pretty well dismantled before he removed the radiator, generator,, and starter. He says the cylinder head, all the casings, the two rear wheels, and most everything else was gone, and that the car was in the creek at the time he removed the things specified, and says he knew if it rained the parts he took off would be ruined, and, believing the car had been thrown away, he took them with no intent to steal. Bray v. State, 41 Tex. 203; Neeley v. State, 8 Tex. App. 64; Forrester v. State, 69 Tex. Cr. R. 62, 152 S. W. 1041; Branch’s Ann. Tex. P. C. § 47.

We have reached the conclusion that we were in error in holding that the facts do not raise the issue requiring the submission of the requested charge. The motion for rehearing is granted, the judgment of affirmance is set aside, and the judgment of the trial court reversed, and the cause remanded. 
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