DORSEY v. STATE

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Docket Number

No. 34623.

Attorney(S)

Tom Moore, Jr., Waco, for appellant. Leon B. Douglas, State's Atty., Austin, for the State.

Judges

WOODLEY, Presiding Judge.

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Smart Summary

Factual and Procedural Background

Luther Dorsey was convicted of felony theft for stealing more than $50 in currency from the cash register at a supermarket in Big Spring, Texas. The theft involved Dorsey acting as a principal with George Currie in taking money from the cash register operated by Mrs. W. R. Newsom, an employee. The indictment named Joe Bell as the owner of the money, who was the supermarket manager responsible for the property but was not present at trial due to illness and hospitalization in another county. The case was appealed from the 118th Judicial District Court of Howard County, Texas, with the punishment set at two years.

Legal Issues Presented

Whether the State's reliance on circumstantial evidence to prove the lack of consent by Joe Bell, the named owner in the indictment, was sufficient and proper.
Whether reversal is warranted because the State did not provide positive, affirmative testimony from Joe Bell regarding his lack of consent to the theft.
Whether the appellant may raise for the first time on appeal an objection to the use of circumstantial evidence to prove want of consent.

Arguments of the Parties

Appellant's Arguments

The appellant contended that the State failed to prove an essential element of the offense: the lack of consent by Joe Bell, the owner named in the indictment.
The appellant relied on precedent stating that positive, affirmative testimony is required to prove lack of consent, and that circumstantial evidence alone is insufficient when such testimony is attainable.
The appellant argued that the State should have produced Joe Bell or accounted for his absence before resorting to circumstantial evidence to prove lack of consent.

State's Arguments

The opinion does not contain a detailed account of the State's specific arguments beyond the general acceptance of circumstantial evidence due to Joe Bell's absence and illness.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Lynch v. State, 70 Tex.Crim. R., 156 S.W. 1182	Positive, affirmative testimony is required to prove want of consent when attainable; circumstantial evidence alone is insufficient.	The Court acknowledged the rule but distinguished the case because Joe Bell was ill and not present, allowing circumstantial evidence.
Wilson v. State, 12 Tex. App. 481 (12 Tex.Crim. 481)	Proof of lack of consent should be made by the owner if attainable; absence must be accounted for before circumstantial evidence is allowed.	The Court found Joe Bell’s illness and hospitalization sufficient to justify circumstantial evidence.
Mitchell v. State, 166 Tex.Crim. R., 313 S.W.2d 286	Want of consent may not be inferred from other circumstances when the owner is present and does not testify to lack of consent.	The Court applied this principle to distinguish the present case where the owner was absent.
Allen v. State, Tex.Cr.App., 24 S.W. 30	Judgment will not be reversed if owner’s direct testimony on want of consent is absent and no objection was made to circumstantial evidence.	The Court held appellant waived objection by failing to raise it at trial.
Taylor v. State, 109 Tex.Crim. 323, 4 S.W.2d 564	Similar to Allen, supports admissibility of circumstantial evidence absent owner’s direct testimony if no trial objection.	Reinforced the Court’s holding that failure to object at trial bars complaint on appeal.

Court's Reasoning and Analysis

The Court examined whether circumstantial evidence was sufficient to prove lack of consent by Joe Bell, the named owner, given his absence due to illness and hospitalization. It recognized the general rule that positive, affirmative testimony is preferred to prove want of consent but found no precedent prohibiting circumstantial evidence when the owner is unavailable. The Court distinguished cases where the owner was present but silent. It cited multiple authorities holding that if the owner is not called as a witness and no objection is made at trial, circumstantial evidence is admissible and the judgment should not be reversed. The Court concluded that the State’s circumstantial evidence was sufficient and that appellant waived any objection by failing to raise it at trial.

Holding and Implications

The judgment is affirmed.

The Court held that circumstantial evidence was properly admitted to prove lack of consent by the owner, Joe Bell, who was absent due to illness. The appellant waived any objection to the use of circumstantial evidence by not raising it at trial. The decision directly upholds the conviction and does not establish new precedent beyond affirming existing principles on circumstantial evidence and waiver of objections.

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Luther DORSEY, Appellant, v. The STATE of Texas, Appellee.

WOODLEY, Presiding Judge.

The offense is felony theft; the punishment, two years.

The circumstantial evidence offered without objection, viewed in the light most favorable to the jury's verdict, is sufficient to sustain the finding that appellant acted as a principal with one George Currie in the theft of more than $50 in currency from the cash register at the checking stand of Mrs. W. R. Newsom, an employee in a Supermarket in Big Spring owned by Don Newsom.

The indictment alleged that the money belonged to Joe Bell.

The evidence shows that Joe Bell was the manager of the Supermarket at the time of the theft, and was in charge of the store and had the care, control and custody of Mr. Don Newson's property in the store.

Joe Bell did not testify at the trial. The evidence shows that he was no longer employed by Don Newsom and had gone to Spur, and at the time of the trial was ill in the hospital in Lubbock.

Joe Bell was not in the store at the time the money was taken out of the open cash register by George Currie, while Mrs. Newsom was checking appellant's purchase and selling him some snuff and tobacco.

Mrs. Newsom testified that she did not give permission to appellant or any other man in any way to take money from the cash register.

The sole ground for reversal is predicated upon the contention that the state failed to prove the essential element of lack of consent of Joe Bell, the owner named in the indictment.

The precise question presented is whether, under the record, reversal should be ordered because the state resorted to circumstantial evidence to prove that Joe Bell did not consent to the taking of the money from the cash register.

Appellant relies upon the rule as stated in Lynch v. State, 70 Tex.Crim. R., 156 S.W. 1182: 'Where positive, affirmative testimony can be shown in regard to want of consent, this may be done, and it cannot be shown by circumstantial evidence.' He also quotes from the early case of Wilson v. State, 12 Tex. App. 481[ 12 Tex.Crim. 481]: 'this proof should be made by the persons themselves if they are attainable, and if they are not to be had, their absence should be accounted for before the State can be allowed to resort to circumstantial evidence.'

We are aware of no holding by this Court that evidence to the effect that the special owner is ill in the hospital in another county is not a sufficient predicate for proof by circumstantial evidence that he did not consent to the taking of property from the store of which he was the manager and in charge of the property stolen.

This Court has, on numerous occasions, applied the rule that want of consent may not be inferred from other circumstances when the owner is present and is a witness in the theft case, but does not testify that the property was taken without his consent. Mitchell v. State, 166 Tex.Crim. R., 313 S.W.2d 286, and cases cited. 5 Branch's Ann.P.C.2d 88, Sec. 2639, cites cases holding that the judgment will not be reversed because the person or persons in whom ownership and possession is alleged were not placed on the stand to testify directly and in terms to want of consent, if no bill of exception was reserved to the circumstantial evidence offered to prove want of consent. Among the cases cited are Allen v. State, Tex.Cr.App., 24 S.W. 30, and Taylor v. State, 109 Tex.Crim. 323, 4 S.W.2d 564.

We hold that the circumstantial evidence offered by the state was sufficient to sustain the jury's finding that the money was taken from the possession of Joe Bell without his consent, and that such evidence was admissible for that purpose, Joe Bell not being present at the trial but ill in a hospital in another county.

We further hold that appellant, not having raised the question by objection in the trial court, may not complain for the first time in this Court that the state resorted to circumstantial evidence in proving want of consent of the special owner, Joe Bell.

The judgment is affirmed.