Kellar v. State

176 S.W. 723, 76 Tex. Crim. 602 (1915)

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Kellar v. State

Texas Court of Criminal Appeals
176 S.W. 723, 76 Tex. Crim. 602 (1915)

  • Written by Liz Nakamura, JD

Facts

Earl Kellar (defendant) urgently needed a gate to secure his pigs, but the nearest lumber yard from which Kellar could purchase wood to build a gate was located 35 miles away. Kellar noticed a gate lying on the ground on property controlled by Mr. Silcott. Based on prior dealings Kellar had had with Silcott, Kellar believed it would not be a problem if he borrowed the gate temporarily. Kellar took the gate and used it to secure his pigs. The next day, Kellar asked Dale McBride to inform Silcott that Kellar had borrowed the gate with the intent to return it after he built a new gate for his pigs. McBride was unable to locate Silcott. Silcott reported the theft of the gate, and the State of Texas charged Kellar with theft under Texas common law. Before the trial, Kellar returned the gate to Silcott. At trial, Kellar argued that he was not liable for theft because he took the gate with the intent only to borrow it temporarily, not to permanently take it. The jury was not instructed that intent to permanently deprive the owner of his property was a required element of the common-law-theft offense. Kellar was convicted, fined, and sentenced to 15 days in prison. Kellar appealed.

Rule of Law

Issue

Holding and Reasoning (Harper, J.)

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