THEATRICAL BUSINESS. The term "theatrical business" includes, not only the pure drama, but also minstrel performances. Taxing Dist. of Shelby Co. v. Emerson, 72 Tenn. (4 Lea) 312, 314. THEATRICAL PERFORMANCE. owner of the value of the same, shall be guilty of theft. Brooks v. State, 26 Tex. App. 184, 189, 9 S. W. 562 (citing Willson, Tex. Cr. Laws, § 1292). It will be observed that, in defining this species of theft, the intention to appropriate the property is not expressly made an element of the offense, as it is in the definition of theft in general. Purcelly v. State, 13 S. W. 993, 994, 29 Tex. App. 1. "Theft" is the fraudulent taking of per A musical performance is not a theatrical, nor a dramatic, performance, within the meaning of Rev. St. Ohio, § 7032a, prohibiting any theatrical or dramatic perform-sonal property from another with intent to ance of any kind or description on Sunday. State v. Fennessy, 10 Ohio S. & C. P. Dec. 608, 609. THEFT. See "Loss by Theft." See, also, "Larceny." Theft is the fraudulent taking of corporeal personal property belonging to another from his possession, or from the possession of some person holding the same for him, without his consent, with intent to deprive the owner of the value of the same, and to appropriate it to the use or benefit of the person taking. Pen. Code Tex. 1895, art. 858; Quitzow v. State, 1 Tex. App. 65, 68; Sansbury v. State, 4 Tex. App. 99, 100; Chance v. State, 27 Tex. App. 441, 443, 11 S. W. 457. Theft includes swindling and embezzlement, and all unlawful acquisitions of personal property punishable by the Penal Code. Code Cr. Proc. art. 714, subd. 6. Theft is the fraudulent taking of personal property under certain designated circumstances, and necessarily involves the idea of an unlawful acquisition. Whitworth v. State, 11 Tex. App. 414, 428, 429. An ordinary indictment for theft will support a conviction for unlawfully taking into possession and driving from its accustomed range the animal of another, without the consent of the owner and with intent to deprive the owner of its value; for Pen. Code, art. 749, provides that if any person shall willfully take into possession and drive and remove from its accustomed range any live stock not his own, without the consent of the owner and with intent to defraud the owner thereof, he shall be deemed guilty of theft. Campbell v. State, 22 Tex. App. 262, 269, 2 S. W. 825. appropriate the same to the taker's own use. That the taking may have been by assault, or by violence, and putting in fear of life or bodily injury, renders it no less a fraudulent taking. Skipworth v. State, 8 Tex. App. 135, 138. As an accident. See "Accident-Accidental." Criminal intent. "Theft" is the fraudulent taking of personalty, so that one who takes property under the belief that he has a right to take it, and that it is his, is not guilty of theft, though he takes it from an officer who has the possession thereof, who has levied thereon as the property of another. Bullard v. State, 53 S. W. 637, 638, 41 Tex. Cr. R. 225. The term "theft" was construed not to include the taking of a saddle belonging to his cousin by defendant, who wished to leave who left with the cousin more than sufficient the neighborhood to avoid a difficulty, but property to pay for the saddle, with a letter ment; the decision being based upon want directing him to take such property in payof felonious intent. Beckham v. State (Tex. Cr. App.) 22 S. W. 411. "Theft" is the fraudulent taking of property with intent to deprive the owner of the the use of the person taking it. The taking value of the same and to appropriate it to must be a fraud upon the rights of another, fraud, and not a constructive or legal one. The crime of theft is not constituted by the taking, or the fraudulent taking; but it alfraud. There must be an intentional taking so includes the purpose and intent to dewithout the consent of the owner, an intentional fraud, and an intentional appropriation, or the theft is not complete. Mullins v. and that must be an actual and intended State, 37 Tex. 337, 338. fraudulent intent, which is the gist of the To constitute theft of lost property, the prop-offense, must exist in the mind of the taker at the time of the taking, and in lost property the time of the taking is the time of finding the property. If the fraudulent intent did not exist at the time of taking, no subsequent fraudulent intent in relation to the property will constitute theft. State v. Riggs, 70 Pac. 947, 951, 8 Idaho, 630. Theft, under Pen. Code, § 3096, includes all unlawful acquisitions of personal erty. Counts v. State, 37 Tex. 593, 594. Any person having possession of personal property of another by virtue of a contract of hiring or borrowing, or other bailment, who shall, without the consent of the owner, fraudulently convert such property to his own use, with intent to deprive the THEFT Embezzlement distinguished. 6939 THEIR I not to prosecute." This is frequently called held to make a man an accessory. Forshner V. Whitcomb, 44 N. H. 14, 16; Commonwealth v. Pease, 16 Mass. 91, 93. The terms "theft" and "embezzlement" | "compounding a felony," and was formerly cannot characterize the same act, because they are repugnant to and irreconcilable with each other. United States v. Thomas (U. S.) 69 Fed. 588, 590. "Theft," as distinguished from "embezzlement," is taking property of another from the possession of the owner with intent to defraud. "Embezzlement," as distinguished from "theft," is taking property of another in the possession of the accused with intent to defraud. The crimes are essentially the same, but most unfortunately are, for the purposes of prosecution, entirely distinct. The one demands, as an essential element, a trespass, a breach of technical possession; the other cannot be committed unless the element of trespass or breach of technical possession is absent. The former is a crime at common law; the latter is a statutory offense. State v. Hanley, 39 Atl. 148, 149, 70 Conn. 265. "Theft" is the fraudulent taking of personal property under certain designated circumstances, and necessarily involves the idea of unlawful acquisition, thereby differing from embezzlement, which is the fraudulent conversion of similar property after its possession has been lawfully acquired. Simco v. State, 8 Tex. App. 406, 407. Fraudulent taking. See "Fraudulent Taking." Larceny synonymous. "Theft" is a popular name for larceny. State v. Boyce, 65 Ark. 82, 83, 44 S. W. 1043. THEFT FROM THE PERSON. "Theft from the person" is an offense distinct from any other theft, and the punishment prescribed therefor is not limited the same as for other thefts. The two essential elements of theft from the person are that the property was taken from the person, and that it was so taken without the knowledge of the person from whom it was taken, or so suddenly as not to allow the injured person time to resist. It can transpire only in the county of the actual overt act of taking, and hence that county is the county of the venue. Gage v. State, 22 Tex. App. 123, 127, 2 S. W. 638. THEFT OF ANIMALS. The words "theft of animals," in a bail bond, describing the offense of which the principal is accused, imports the theft of a species of animals which are subject to theft, and therefore, as the words necessarily mean an offense known to the law, their use is sufficient, without describing the nature of the animals alleged to have been stolen. Vivian v. State, 16 Tex. App. 262, 264. THEFT ON LAND OR AFLOAT. A bill of lading recited that a ship comBlackstone regards "theft" as synony-pany would not be liable for any loss or in mous with “larceny." It is the felonious taking and carrying away of the personal goods of another. Mathews v. State, 36 Tex. 675, 676 (citing 4 Bl. Comm. 230). jury, etc., of goods transported, from theft on land or afloat, etc. Held, that the clause, "theft on land or afloat" should not be construed to exempt the company from a theft committed by the purser, who was placed in charge of the articles by the company itself. Spinette v. Atlas S. S. Co. (N. Y.) 14 Hun, 100, 105. "Theft" is defined as a proper term for larceny, and is used by Blackstone as synonymous with the latter word, and as descriptive of one and the same offense. Hence it is held that the word "theft" describes a crime, and is synonymous with larceny; so THEIR. that a recital in an executive warrant for extradition, stating that the party sought to be extradited was charged with theft, was sufficient. People v. Donohue, 84 N. Y. 438, 442. Swindling. See "Swindle-Swindling." As all. "Their roads," as used in Act Ill. Feb. 12, 1855, providing that all railroad companies incorporated under the laws of the state were empowered to make contracts and arrangements with each other and with railroad corporations of other states for leasing or running their roads or any part thereof, by the grammatical and natural construction, includes roads of Illinois corpora"Theft bote" as defined by Blackstone, tions as well as roads of corporations of occurs "where the party robbed not only other states. St. Louis, V. & T. H. R. Co. knows the felon, but also takes his goods v. Terre Haute & I. R. Co., 12 Sup. Ct. 953, again, or other amends, on the agreement 955, 145 U. S. 393, 36 L. Ed. 748. 8 WDS. & P.-10 THEFT BOTE. A marriage settlement between parties "during their joint and natural lives" means during their joint lives and the life of each of them. Smith v. Oakes, 14 Sim. 122, 124. THEIR LIVES. "Their," as used in a will directing trus- THEIR JOINT AND NATURAL LIVES. tees to pay annually from the income of the estate the proper sum for the respectable maintenance of the testator's son and his wife and his children, to them jointly or to either of them, during their joint lives, or for their use and benefit, etc., should be construed to apply to the children, as well as to the parents. Sargent v. Bourne, 47 Mass. (6 Metc.) 32, 49. Where a testator directed his executors to procure a suitable residence for his daugh"Their," as used in an indictment char- ter at an expense not exceeding $6,000, and ging the defendant with the taking of prop- to hold the same in trust for her and her erty belonging to two owners from a house, son during their lives, devising the property with intent to take the property from the over, the term "during their lives" clearly possession of the owners, or either of them, imported an intention on the part of the teswithout their consent, refers to them col- tator to give an interest during their joint lectively, and is not tantamount to negativ-lives and the life of the survivor, which, on ing the consent of each of them, and there- her death before the testator's death, did not fore the indictment is insufficient. Young lapse, but went to the son for life. Dow v. v. State, 59 S. W. 890, 891, 42 Tex. Cr. R. Doyle, 103 Mass. 489, 491. 301. As importing joint obligation. An agreement to pay an annuity to a husband and wife "during their natural lives" binds the party to pay the annuity The word "their" imports a joint obliga- during the joint lives of the husband and tion. Cottrell v. Hathaway, 66 N. W. 596, wife and during the life of the survivor. 597, 108 Mich. 619 (citing Edwards V. Douglas v. Parsons, 22 Ohio St. 526. Hughes, 20 Mich. 289; Miller v. Bay Circuit Judge, 41 Mich. 326, 2 N. W. 26; Geiges v. Greiner, 68 Mich. 153, 155, 36 N. W. 48; Sword v. Lenawee Circuit Judge, 71 Mich. 284, 285, 38 N. W. 870). As implying ownership. THEIR OWN LAND. In Act Me. March 16, 1836, authorizing a corporation to erect and maintain a milldam on their own land, across the head of Little River Harbor, the words "on their own that the Legislature intended to authorize the corporation to take the lands of others for that purpose, and did not limit the words "across the head of [the] harbor," so as to prevent the dam from crossing the main channel. Parker v. Cutler Milldam Co., 20 Me. 353, 356, 37 Am. Dec. 56. A fire policy to insured on "their four-land” merely meant to exclude any inference story stone or brick building" is an assertion by the insured that they were the owners of the property, but it did not mean that they held it by a technical legal title. It did not mean that the insured had the conveyance of the perfect title at law. If the insured were the owners of the property, in so far as to have the entire beneficial interest, and in case of loss to lose the whole value of the property, then they were owners as set forth in the policy, and the property was their property as stated in the policy. Gaylord v. Lamar Fire Ins. Co., 40 Mo. 13, 17, 93 Am. Dec. 289. THEIR CHILDREN. "Their children," as used in a life policy payable to the wife of the assured, and, in the event that she died before him, then to their children, mean the children common to the assured and his wife. Evans v. Opperman, 13 S. W. 312, 76 Tex. 293. THEIR DEATH. A will devising land to two sons named, "and after their death to their children," meant the death of the survivor, and created a life estate, with remainder to their children as purchasers on the death of the survivor. Jones v. Cable, 7 Atl. 791, 792, 114 Pa. 586. THEIR PART. "Their part," as used in a will devising property to testator's children, and directing that, in the event of the death of any of them, "their part" be given to their children, means "the part of such dead child." Andrews v. Andrews, 54 Tenn. (7 Heisk.) 234, 243. THEM. "Them," as used in a will reciting: "1 give and bequeath to my daughter Catherine, married to Samuel Meisenhelter, the oneeighth part of my estate to them. Those that I have advanced to them in my lifetime towards their legacies shall be all equalized, that they all may share alike"-means the same and refers to the same persons as the previous pronoun "those," and makes the bequest one to the husband and wife, to which the husband, surviving the wife, is entitled. "Them" is a pronoun, and in grammar comes in instead of repeating the two last named persons. Every person uses the word "him," instead of repeating the name of the person referred to, and uses the word "they" or "them," instead of repeating the names of the persons spoken of. "He" or "him," "they" or "them," in writing or in conversation, are not unmeaning, nor even vague, when they refer to persons just named before. Hamm v. Meisenhelter (Pa.) 9 Watts, 349, 351. As all. "Them,” as used in a will directing trustees to pay annually from the income of the estate the proper sum for the respectable maintenance of the testator's son and his wife and his children, to them jointly or to either of them during their joint lives, or for their use and benefit, etc., should be construed to apply to the children, as well as to the parents. Sargent v. Bourne, 47 Mass. (6 Metc.) 32, 49. The use of the word "them," instead of "It," in Consolidation Act, § 1769, providing that the board of coroners may, for cause, remove the physicians appointed by them, warrants the construction that one coroner cannot remove an incumbent, even though the latter was appointed by such coroner. People v. Zucca, 73 N. Y. Supp. 311, 312, 36 Misc. Rep. 260. As themselves. In a deed reading that "B. and wife, party of the first part, for them, heirs, executors, and administrators, do covenant," etc., the covenants are somewhat obscure, but are susceptible to being made clear. The word "them" should be read "themselves." The following words, "heirs, executors, and administrators," are under our statute surplusage, and it is unnecessary to insert them in order to bind them, on the principle, recognized by our statute, that the heir is bound for all demands against his ancestor to the extent of the real estate which he may inherit. Baker v. Hunt, 40 III. 264, 265, 89 Am. Dec. 346. THEM ALL. The use of the words "them all," in a will devising a slave and her child to A., but directing that, in case of the death of A. without a child, testator leaves "them all" to other designated beneficiaries, cannot be restricted to the children of the slave born after the death of the testatrix, but includes the slave and her family. Moye v. Moye, 58 N. C. 359, 360. THEM AND THEIR HEIRS AND ASSIGNS. The use of the phrase "to them and their heirs and assigns, forever," in the devise of a contingent remainder to certain devisees, THEN does not describe the devisees, but the quantity of their estate, or, in other words, that the estate to be taken by virtue of the previous words is an estate in fee. Thomson v. Lundington, 104 Mass. 193, 194. THEN. The wood "then" means, when used as a word of reasoning, "in that event," or "in that case," or "therefore." It also means "at that time," or "immediately afterwards." Dudley v. Porter, 16 Ga. 613, 617. "The word 'then' may be used either as a word of reasoning or of time, when it is used in the limitation of estates or in framing contingencies, unless something in the context makes a different meaning for it necessary. 'It is to be regarded,' said Lord Hardwicke, in Beauclerk v. Dormer, 2 Atk. 311, 'as a word of reference, but it may be used on such occasions in its grammatical such case the context should plainly show sense; that is, as an adverb of time.' In that it was so used before effect is thus given to it. When it is employed in the former that event,' or 'in that case'; when in the sense, it is synonymous with the phrase 'in latter, with the words, ‘at that time.'” ris v. Smith, 16 Ga. 545, 557. Har In a grammatical sense "then" is an adverb of time; but in limitations of estates, in framing contingencies, it is a word of reference, and relates to a determination of the first limitation in the estate where the contingency arises. Beauclerk v. Dormer, 2 Atk. 308, 311; Bigge v. Bensley, 1 Brown, Ch. 187, 190. "Then," in a will, is not ordinarily a word which points to the time, but only to the event which has taken place. Gundry v. Pinniger, 7 Eng. Law & Eq. 148, 151. "Then," as used in Code Civ. Proc. § 2458, providing that, to entitle a judgment creditor to maintain proceedings supplementary to execution, the execution must have been issued, if the judgment debtor is then a resident of the state, refers to the commencement of the special proceedings. Schenck v. Irwin, 15 N. Y. Supp. 55, 56, 60 Hun, 361. As at that time. The word "then," as an adverb, means at that time, referring to a time specified, either past or future. It has no power in itself to fix a time. It simply refers to a time already fixed. Mangum v. Piester, 16 S. C. 316, 329. "Then," as used in a contract containing a proviso that, if defendant shall sell or lease certain machines in any foreign country at less rates than those in this country, then the royalty rate to be paid shall be a certain per cent. in lieu of the per cent. | sition with the phrase "in that case." Hartherein before provided, is used as an adverb ris v. Smith, 16 Ga. 545, 557. of time, bearing the meaning of "at that time." National Sewing Mach. Co. v. Willcox & Gibbs Sewing Mach. Co. (U. S.) 74 Fed. 557, 559, 20 C. C. A. 654. The word "then" may mean: First, at that time; secondly, afterwards, or soon afterwards. A bill of exceptions showed the following entry: "Defendant then filed motion for new trial, as follows." As it is the settled law that the bill of exceptions must show affirmatively that the motion for new trial was filed within four days, excluding intervening Sundays, after the trial, the use of the word "then" is insufficient; for the word "then" does not show that the motion was filed at the time of the trial, and therefore within the statutory limit, or afterwards; for that is not necessarily limited to the four days allotted for such motion. Bruns v. Capstick, 62 Mo. App. 57, 59. "Then," as used in a conveyance describing the land by a course from a certain point to another point, then to a tree, then to another tree, etc., "means afterwards, immediately afterwards, or at that time, and such is the meaning in all surveys; that is, as soon as the surveyor comes to a determination of one line, he commenced running the next." Hammond v. Ridgely's Lessee (Md.) 5 Har. & J. 245, 259, 9 Am. Dec. 522. The word "then," in a clause in a will giving property to testator's wife during her life, and after her death or remarriage "I give the same unto all my children then living," etc., was used as an adverb of time, and not as a conjunction, signifying merely "in that case," or "in that event or contingency." Thran v. Herzog, 12 Pa. Super. Ct. 551, 559. The word "then," in a will giving testator's property to certain beneficiaries, and providing and directing that, "if either beneficiary die without child or children, then all the legacies given them shall vest and be considered as my estate," means "at the time," which is the natural, plain, simple construction of the word. Gibson v. Hardaway, 68 Ga. 370, 378. The word "then," in a devise of property to a certain beneficiary, but providing that, "should the beneficiary die without leaving any issue, then the property should go to another," plainly refers to the event, to the happening of that contingency, and not to the time at which the last beneficiary's right should commence. Hennessy v. Patterson, 85 N. Y. 91, 101. The word "then," in a will directing that, if testator's grandson should "die leaving no lawful heirs, then in that case it is my will," etc., is plainly used as an adverb of time, because it is in immediate juxtapo A chattel mortgage provided that the mortgagee might take possession whenever he deemed himself insecure, and authorized him to "then dispose of the property by sale," etc. Held, that the word "then" applied to and meant the time when the mortgagee deemed himself insecure, and did not relate to the time when he was permitted to foreclose after default, thus giving the mortgagee the right to sell at once after taking possession on deeming himself insecure. Schmittdiel v. Moore, 60 N. W. 279, 280, 101 Mich. 590. As immediately. "Then or at any time after," as used in Laws 1882, c. 197, § 5, authorizing water commissioners of Amsterdam to condemn lands, and providing that, in case the commissioners take possession of land without having the same condemned, the owner may "then or at any time after" apply for the appointment of commissioners to ascertain his compensation, are used in the sense of "immediately," "forthwith," or "at once,” so that the statute of limitations begins to run against the owner's claim immediately on the taking possession of the land by the commissioners. In re Clark, 26 N. Y. Supp. 214, 215, 74 Hun, 294. Death of taker referred to. On the devise of certain property to testator's widow, and on her death "then my said estate shall be equally divided," the term "then" refers to the death of the wid ow. Schwencke v. Haffner, 45 N. Y. Supp. 937, 938, 18 App. Div. 182. In a will devising certain property to testator's son during life, remainder to his children, if any, but, in the event of his leaving no children, the property then to revert to testator's estate, the word "then" is an adverb of time, and relates to the time of the death of the son and to his leaving no child or children at that time. Sanford v. Sanford, 58 Ga. 259, 260. The word "then," in a clause in a will devising property to testator's grandson, and directing that, "in case of his death at any time without issue, I then give and bequeath" the property given to him to another, refers to the time of the death of the grandson. Appeal of Snyder, 95 Pa. 174, 182 (quoted in Re Miller's Estate, 22 Atl. 1044, 145 Pa. 561). The word "then," in a will in which testator gives real estate to his son, and directs that, if the son die without issue, then at his decease the said property shall go to others, is to be construed as referring to the time of the death of the son. Sinnickson v. Snitcher, 14 N. J. Law (2 J. S. Green) 53, 59. |