
    MOORE v. STATE.
    (No. 7821.)
    (Court of Criminal Appeals of Texas.
    Nov. 7, 1923.
    Rehearing Denied Dec. 5, 1923.)
    1. Criminal law <@=>825(I)— Charge as to principals held sufficient in absence of request for more explicit charge.
    In a prosecution for felony, error cannot be predicated of the court’s charge with reference to principals that all persons are principals who are guilty of acting together in the commission of an offense, and that, if the jury believed that defendant, either acting alone or with others, etc., where no fuller or more explicit charge on the question of principals was requested.
    2. Larceny <&wkey;>65—Evidence held to sustain conviction for felony.
    Evidence held, to support a conviction of larceny of gasoline of the value of more than $50.
    3. Larceny <&wkey;23—Conducting gasoline through small pipe held' not misdemeanor theft.
    That gasoline of the total value of more than $50 was conducted from the owner’s tanks to defendant’s tanks through a. small pipe did not constitute a series of misdemeanors, but was a single transaction, and amounted to a felony.
    <@=>For other cases see same topic and KEY-NUMBER In all Key-Numbered Digests and Indexes
    Appeal from District Court, Wichita County; P. A. Martin, Judge.
    G. E. Moore was convicted of the theft of property of the value of more than $50, and he appeals.
    Affirmed.
    Heyser & Hicks and Mathis & Caldwell, all of Wichita Falls, for appellant.
    R. G. Storey, Asst. Atty. Gen., for the State.
   DATTIMORE, J.

Appellant was convicted in the district court of Wichita county of theft of property of the value of more than $50, and his punishment fixed at two years in the penitentiary.

From the case as we understand it, if appears that pipe lines had been laid from the tanks of the alleged owner of the stolen property, through which were conveyed to smaller tanks in the care, management, and control of appellant quantities of gasoline! That the last few feet of the pipe so conveying gasoline consisted of a hose would seem to make no difference. It is made to appear that in the tanks of appellant there were more than 1,000 gallons of gasoline at the time of the discovery of the illegal transaction involved.

There are three bills of exception, in one of which complaint is made that the court refused to peremptorily instruct the jury that appellant could not be guilty of a felony; in the second of which appears substantially the same thing, that is, it presents an exception to the court’s charge submitting to the jury the theft of more than $50 worth of property; the third complains of that paragraph of the court’s charge in which he submitted the theory of the acting together of appellant and another, it being asserted that the proof of such fact was too-indefinite,' and that there was no allegation in the indictment of an acting together with another. In our opinion neither bill presents reversible error. Examining the charge of the court, we observe that the only things said therein in reference to principals are found in paragraphs 2 and 3. Paragraph 2 states that all persons are principals who are guilty of acting together in the commission of an offense. Paragraph 3-instructs the jury that, if they find and believe from the evidence beyond a reasonable-doubt that defendant, Moore, either acting alone or with others, etc. No fuller or more explicit charge on the question of principals was requested', the record containing only the requested charge referred to above to-the effect that appellant, if guilty at all, would only be guilty of a misdemeanor.

We regret that we are not able to-agree with appellant’s contention, as earnestly made in brief and oral argument, that the evidence does not support a judgment of conviction of an offense of the grade of felony. It is made to appear that, upon discovering that they were losing gasoline, an investigation was made, and certain tanks were discovered at appellant’s place connected as aforesaid with those of the owner of the missing property. Same were housed up, and were found to contain gasoline. The tanks were about 36 inches in diameter, and probably about five feet high, and would hold about 1,000 gallons each. The number of them is not stated, but it is stated that there were several. The price of gasoline at the time was stated to be possibly 22 cents, but was figured by the owner at least at 19 cents. That this means 19 cents a gallon is too clear from the record for us to raise any quibble about it. The taking of one of the tanks of gasoline containing 1,009 gallons would appear to be the taking of property of the value of considerably more than $100.

The connecting of the tanks of the owner with the tanks of appellant by a small pipe line, which in the course of time would fill the latter tanks, would seem to us to be one continuous transaction, and to be in law what same was intended to be evidently by appellant; that is, the taking of 1,000 gallons of gasoline from the owner’s possession with intent to appropriate it to that of appellant. The transaction would be somewhat analogous to the act of one who should drive out of another’s lot a herd of- cattle through a gate so small that but one of them could go out at a time. It would need no argument or illustration to establish the fact that this would constitute but one taking, and that the accused could plead a former conviction of ■ acquittal of the taking of any such cattle in bar of any further prosecution.

Finding no error in the record, an affirmance is ordered.

On Motion for Rehearing.

We have carefully examined the contentions made by appellant in his motion for rehearing, and regret our inability to agree with same. We do not think- the learned trial court called upon to instruct the jury as to misdemeanor theft when the theft complained of 'consists in the connecting up of large gasoline tanks owned by the party described in the indictment as the owner of the alleged stolen property with smaller tanks owned by the appellant, the connection being made by a pipe through which there would appear to run a necessarily small but continuous, stream of gasoline from the larger tanks to the smaller ones until they were filled. In our opinion this could in no sense and by no process of reasoning be held to be a number of successive small or misdemeanor thefts, but must be deemed to be one taking of all of the gasoline stolen or shown by the proof to have been lost at that time and in this manner. Adopting an illustration attempted by appellant in his motion, if a pen fijll of turkeys was raided, and taken one at a time by A., and each so taken passed out to B., who had his conveyance at a convenient point, and this continued until all the turkeys were taken, it could hardly be deemed in law a number of takings, but would be held to constitute but one offense.

Being unable to agree with the contentions made by appellant in his motion for rehearing, same will be denied.  