
    WILSON v. STATE.
    (Court of Criminal Appeals of Texas.
    June 11, 1913.)
    1. Larceny (§ 23) — Acts Constituting Single Theft.
    The taking of goods from different departments in a department store during a night pursuant to one purpose constitutes but one theft.
    [Ed. Note. — For other cases, see Larceny, Cent. Dig. §§ 50-52; Dec. Dig. § 23.]
    2. Criminal Law (§ 823) — Instructions— Misleading Instructions.
    An instruction on a trial for theft of property worth over $50 that theft of property under the value of $50 is punishable by imprisonment in the county jail and by fine, or imprisonment without fine, and, if the jury believe that accused is guilty and have a reasonable doubt as to whether the value of the property taken is less than $50, the verdict must be guilty of theft of property under the value of $50, when read in connection with a charge that, before the jury can convict accused of a felony, the state must show beyond a reasonable doubt that $50 worth or more of property was taken at the same time, is not misleading, but sufficiently places the reasonable doubt as to value in favor of the defendant.
    [Ed. Note. — For other cases, see Criminal Law. Cent. Dig. §§ 1992-1995, 3158; Dec. Dig. § 823.]
    3. Criminal Law (§ 571) — Reasonable Doubt — Degree of Offense.
    One charged with theft of property worth over $50 cannot be convicted of a felony, where there is a doubt as to the value, and he is then entitled to an acquittal of the felony.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. § 1272; Dec. Dig. § 571.]
    4. Criminal Law (§ 1090) — Rulings on Evidence — Bill of Exceptions — Review.
    Grounds in a motion for new trial based on rulings on evidence will not be considered when not perpetuated by bills, of exception.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2653, 2789, 2803-2822, 2825-2827, 2927, 2928, 2948, 3204; Dec. Dig. § 1090.]
    Appeal from District Court, Bowie County; P. A. Turner, Judge.
    Jim Wilson was convicted of theft, and he appeals.
    Affirmed.
    Mahaffey, Thomas & Hughes, of Texar-kana, for appellant. C. E. Lane, Asst. Atty. Gen., for the State. -
    
      
       For otter cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep’r Indexes
    
   DAVIDSON, P. J.

Appellant was convicted of theft of property over the value of $50; his punishment being assessed at two years’ confinement in the penitentiary.

He was porter in a department store. Goods were missing from the store to the amount of several hundred dollars. Upon an investigation of the matter, appellant took the officers and alleged owner of the store into the basement of the building, and from a place where they had been secreted procured two grips and turned them over to the parties. These grips contained the missing property, consisting of various and divers articles which were carried in stock in the store, handkerchiefs, socks, stockings, suits of clothes, ladies’ underwear, dress skirts, and other things.

One of the principal contentions is there is serious' doubt in the testimony that as much as $50 worth of the goods were taken at one time. There is evidence to justify the jury in concluding that that theory was not true. Among other things, it is shown that quite a lot of the goods found in the grips were in stock the evening before the discovery of the missing goods the following morning. This evidence went to indicate the property was taken after the store closed the previous evening. Evidently appellant secreted the grips, and was particeps eriminis, if not the real and only actor, in placing the goods in the grips. Upon being questioned about the goods, he told the officers that he knew where they were, took them -immediately into the basement, and secured the grips from the place where they had been hidden. If the goods were taken, as indjeated, the night previous to their discovery, it would follow they were all taken in pursuance of one purpose, and taken from the store the night previous. The testimony indicates there was more than $50 worth of the property taken the night before. If they were taken that night, it would necessarily follow that they were taken in pursuance of one purpose and design, and not taken at different dates: The fact they were taken from,different sections of the store under the circumstances of this case would not constitute different takings, and would support the proposition that they were taken in pursuance of one purpose, and, legally speaking, at the same time, so far as the doctrine of theft is concerned when applied to different takings.

It is contended, however, that the court’s charge is wrong in submitting the issue of different takings. The court’s charge in this connection is as follows, after charging theft of property over the value of $50: “Theft of property under the value of $50 shall be punished by imprisonment in the county jail not exceeding two years and by fine not exceeding $500, or by such imprisonment without fine. If you believe, beyond a reasonable doubt from the testimony that the defendant is guilty, and have a reasonable doubt as to whether the value' of the property taken by defendant, if he took any property, at one time was of the value of less than $50, then you Will find the defendant guilty of theft of property under the value of $50, and assess his punishment at confinement in the county jail,” etc. It is contended this charge is erroneous, in that it made the conviction for the lesser offense depend solely upon the existence of a reasonable doubt that the value of the property taken by him at one time was less than $50; his contention being that under the law, if the jury believed the defendant guilty of taking the property described in the indictment and had, a reasonable doubt as to whether the value of the property taken by him at one time was $50, he was entitled to the benefit of this doubt; and, further, that the jury was not authorized to find defendant guilty of the lesser offense,' although they might not have had a reasonable doubt, but might have believed beyond a reasonable doubt that the value of the property taken by the defendant at one and the same time was less than $50. While this charge is awkwardly worded, yet we are' of opinion that it was not in any way injurious to the defendant, and, in fact, we do not believe the jury could have been misled by it. If the jury had a reasonable doubt that the property was of the value of less than $50, they were instructed to convict of the misdemeanor. This places the reasonable doubt in favor of the defendant. Under this charge, if the jury had a reasonable doubt that the property was less in value than $50, they were instructed to acquit of felony. It is tantamount to instructing the jury, if the property was of less value than $50, they should acquit of felony, or, if they had a reasonable doubt in their minds as to the value being less than $50, they should convict of the misdemeanor.

Unquestionably the law is that before the appellant could be convicted of a felony the value of the property must be $50 or in excess of $50. If there was a doubt of this, he was entitled to an acquittal of felony. The jury was appropriately instructed that, before they could convict him of a felony, the state must show beyond a reasonable doubt that there was $50 worth or more of property taken at the same time. Then followed the charge with reference to misdemeanor theft above quoted. We think the charge sufficiently places the reasonable doubt as to the value and that the jury was not and could not have been misled by this charge.

There are some grounds in the motion for new trial with reference to rulings o'f the court admitting and rejecting testimony, but these are not perpetuated by bills of exception, and therefore are not discussed.

We are of opinion, taking the matters as presented, that we would not be justified in reversing this judgment; therefore it is affirmed.  