Cases argued and decided in the Supreme Court of Texas, during the latter part of the Tyler term, 1874, and the first part of the Galveston term, 1875. Volume 42. Page: 304
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304 FLYNN V. THE STATE. [Term of
Opinion of the Court.
was quite as favorable to the accused as the evidence demanded,
or the law permitted. We find no error in the charge. The
refusal of the court to give the instruction asked for defendant,
was, under the facts of the case and the law, a proper exercise
of discretion. The evidence, uncontradicted, shows that while
appellant's co-defendant and associate, Wheeler, was "jostling
"against himnl" Walsh, and impeding his exit from the crowd
at the theater, appellant forced his hand into Walsh's pocket,
took the pocket-book into his hand, and drew it half way out of
the pocket; when the owner feeling the movement, turned suddenly
around, and, with an angry exclamation, disconcerted the
accused, who then made his escape. The witness stating further,
that he resisted defendant's going away with the book, as
(well) as lie could, on finding him withdraw it. The accused
was indicted under Article 762 of the Criminal Code. Article
763 defines the necessary requisites to constitute the offense.
1st. A theft from the person. 2d. The commission of the
theft without the knowledge of the person from whom the
property is taken, or so suddenly as not to allow time to make
resistance before the property is carried away; and, 3d. "It is
" only necessary that the property stolen should have gone into
" the possession of the thief, it need not be carried away in order
" to complete the offense." In the present case it was taken
from the person, from the place where the owner had deposited
it. 4th. While Walsh was annoyed and his attention attracted by
Wheeler, the defendant (in the language of the Code), "pri'
vately " took into his possession the pocket-book, and without
the knowledge of the owner. 5th. The evidence shows lie had,
or held it in his hand, had removed it half out of the pocket--a
sufficient possession within the letter and spirit of the Code-of
property as small and portable as the article taken. The provision
in Article 763, which dispenses with the necessity of
proving the carrying away of property stolen from the person,
and which makes the mere going into the possession of the
thief of such property, sufficient proof, justified the court in
refusing the instruction asked.
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Texas. Supreme Court. Cases argued and decided in the Supreme Court of Texas, during the latter part of the Tyler term, 1874, and the first part of the Galveston term, 1875. Volume 42., book, 1881; St. Louis, Mo.. (texashistory.unt.edu/ark:/67531/metapth28531/m1/312/: accessed May 24, 2018), University of North Texas Libraries, The Portal to Texas History, texashistory.unt.edu; .