Opinion
No. 15520.
Delivered January 18, 1933.
1. — Misdemeanor Theft — Misdemeanor Theft, Punishment for — Statute, Amendment to.
Amendment to statute, relating to punishment for misdemeanor theft, held not to deprive county court of concurrent jurisdiction with the justice court over cases charging the theft of property of value of $5 or less.
2. — Misdemeanor Theft — Information.
In prosecution for misdemeanor theft, the information, failing to allege that the property was "fraudulently" taken, held insufficient.
Appeal from the County Court of Terry County. Tried below before the Hon. Jay Barret, Judge.
Appeal from a conviction for misdemeanor theft; penalty, a fine of $25, and confinement in the county jail for ten days. Judgment reversed, and prosecution ordered dismissed.
The opinion states the case.
R. L. Graves, of Brownfield, for appellant.
Lloyd W. Davidson, State's Attorney, of Austin, for the State.
The offense is theft, a misdemeanor; penalty assessed at a fine of $25 and confinement in the county jail for ten days.
The position taken by the appellant that chapter 157, Acts of the Fortieth Legislature, Reg. Sess., deprived the county court of concurrent jurisdiction with the justice court over cases charging the theft of property of the value of $5 or less is not regarded as sound. It is thought that the concurrent jurisdiction of the county court, as stated in article 56, C. C. P., was not repealed by the legislative act mentioned.
The appellant's position that the information charging him with the offense of theft is insufficient in failing to allege that the property was "fraudulently" taken is deemed correct. See article 1410, P. C., 1925, also Haney v. State, 117 Tex. Crim. 564, 37 S.W.2d 746, and cases cited. The same vice appearing in the complaint, it is the duty of this court to reverse the judgment of conviction and order a dismissal of the prosecution, which is accordingly done.
Judgment reversed, and prosecution ordered dismissed.