
    MITCHELL v. STATE.
    (No. 3810.)
    (Court of Criminal Appeals of Texas.
    Nov. 10, 1915.)
    1. Labceny <&wkey;3 — Lawful Taking — Subsequent Formation oe Fraudulent Intent.
    Defendant sold C. some pecans and was given a check therefor by C., but C. by mistake made the check for $31 when it should have been for $13. Defendant did not know of the mistake or know how much was coming to him, but before he reached the bank was overtaken by a boy sent by C., who told him of the mistake and asked him to return so that it could be corrected. Defendant, however, cashed the check and failed to return to settle the matter with C. Held, that he was not guilty of theft, as he came into possession of the check by lawful means without any fraudulent pretext or device, and any fraudulent intent subsequently formed could not relate back and make the acquirement of the check a fraudulent taking, and, moreover, defendant was entitled to part of the check and a part owner thereof.
    [Ed. Note. — For other cases, see Larceny, Cent. Dig. §§ 3-10; Dec. Dig. @=>3.]
    2. Larceny <&wkey;8 — Property Subject to Larceny — Ownership.
    If the party taking alleged stolen property is a part owner thereof, the taking is not theft unless the person from whom it was taken was wholly entitled to the possession at the time.
    [Ed. Note. — For other cases, see Larceny, Cent. Dig. § 20; Dee. Dig. &wkey;>8.]
    3. Larceny <&wkey;8 — Property Subject to Larceny — Ownership .
    A person cannot steal his own property unless somebody else is lawfully entitled to and in possession of the property as against defendant’s right to have it.
    [Ed. Note. — For other cases, see Larceny, Cent. Dig. § 20; Dec. Dig. <Sxxo8.]
    Appeal from Tom Green County Court; Oscar Frink, Judge.
    Pat Mitchell was convicted of misdemean- or theft, and he appeals.
    Reversed and remanded.
    C. C. McDonald, Asst. Atty. Gen., for the State.
   DAVIDSON, J.

Appellant was convicted of misdemeanor theft, his punishment being assessed at a fine of $50 and 30 days’ imprisonment in the county jail.

Substantially, the evidence is that appellant sold the Caldwell Bros, some pecans. Appellant knew nothing about the weight, and, of course, was ignorant as to the amount of money that the Caldwell Bros, would owe him, except from Caldwell’s statement. Caldwell’s statement was that the pecans weighed a few pounds over 200. He wrote out a check and handed it to appellant, who took it and went away. This check was written for $31. After appellant had gone away with the check, Caldwell sent a boy to notify him (appellant) of the fact that he (Caldwell) had made a mistake in the check, and with the request that he return it so it could be corrected. The boy overtook appellant before he reached the bank and mentioned the matter to him. Appellant said, all right, he would return and pay him the difference. Appellant did not seem to know anything about it further than as shown by the cheek as to the amount, and he was not informed by Caldwell, it seems, as to what amount of the $31 was a mistake in writing the check. Caldwell said, however, that the check was intended to be written 13, and he transposed the figures and made it 31. Of this, however, appellant knew nothing, or that there was any mistake, until after he was informed by the boy. It was not called to his attention. He cashed the check and did not return to Caldwell to settle the matter with him. lie was convicted for the theft of the check. The evidence does not support this finding. There was nothing to indicate he stole the check. It was handed to him by Caldwell. He did not know at the time he received it and went away with it there was anything wrong about it, and did not know until the boy overtook him. So he came into possession of it by lawful means. If there was ever any fraudulent intent on the part of appellant, it was subsequently formed. That could not relate back and make the acquirement of the check a fraudulent taking. The fraudulent intent must exist at the time of the taking. This is so by all the authorities. To relieve this proposition it must be shown that at the time he obtained possession of the check it was done by some fraudulent pretext or device. Caldwell’s testimony for the state excludes this, as does the defendant’s testimony. There were no representations by appellant one way or the other. He took Caldwell his pecans, turned them over to Mr. Caldwell, who weighed them and settled on his own weights, appellant having nothing to do with it, and did not know what they weighed, nor did Caldwell inform him. Mr. Caldwell wrote out the check and handed it to appellant. He put it in his pocket and went away.

There is another proposition inv'olved in this matter also: If the defendant be part owner of the alleged stolen property, the taking does not come within the definition of theft, unless the person from whom it was taken be wholly entitled to the possession at the time. See Mr. Branch’s Crim. Law, § 771. A kindred thought to this in the law of theft is found in the fact defendant cannot steal his own property, unless somebody else is lawfully entitled to and in possession of the property as against the defendant’s right to have it. In this case the state makes it definitely clear, and there is no controversy about the proposition, that defendant was entitled to part of the check, and therefore from that viewpoint a part owner in it, and it was his property to that extent, and he was in no way responsible for the condition of the thing, but Mr. Caldwell, the state’s alleged injured party, was responsible for the matter. He was part owner and necessarily interested, and had a right to his part of it, and, not having obtained it in any surreptitious way, this conviction cannot be sustained.

The judgment is reversed, and the cause remanded. 
      <&wkey;>For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes
     