Thurman v. State

Decided July 1, 1871

Texas Supreme Court · decided 1871-07-01

Tried below before tbe Hon. A. B. Norton. Tbe evidence is believed to be fully and accurately epitomized in tbe bead note, and it is not deemed necessary to recapitulate tbe testimony of the half dozen witnesses examined. The jury ■assessed a fine of fifteen dollars and an hour’s imprisonment in tbe county jail, against tbe accused. He moved for a new trial, and on its refusal gave notice of appeal.

Decided 1871-07-01

Walker, J.

¶1Under the ruling of this court in Herber v. Tbe State, 7 Texas Reports, page 69, the evidence in this case is clearly insufficient to make out a case of larceny.

¶2The court erred in refusing a new trial. No conviction in a *685criminal case can be sustained when tbe evidence does net bring tbe offense within the legal definition of that charged in the indictment, or some lesser offense which from its nature merges in the greater one charged ; and in such case it may be said that the lesser offense is charged in the indictment, as the greater carries with it the ingredients of the lesser. The judgment of 'the district court is reversed and the cause dismissed.

¶3Reversed and dismissed.