This is a conviction for theft, in which two questions are raised upon the evidence and the charge of the court: first, as to the ownership of the gelding alleged to be the property of Bernardo Esparza; and, second, as to the fraudulent intent to appropriate the horse by the defendant.
Esparza occasionally used and fed the gelding as he did his own horses, which gelding had previously been running in the range with his horses as an estray. Blackburn, who lived one and a half miles from Esparza, both of whom reside in Goliad county, near the line of Victoria county, is seen riding the gelding at Murphy’s store, at Carlo’s ranche, in Victoria county, several days, when he was arrested for an aggravated assault, and the gelding being left there by the officers who arrested him; Esparza got him a few days after-
Thus it was shown that Esparza did not have either general or special property in the gelding, and it was not clearly shown that he had that sort of actual possession of or control over the animal, exclusive in its nature for the time, when the gelding was taken by Blackburn, which would enable him to maintain trespass for the taking of the gelding.
Mr. Bishop says, “It is a rule, rather technical than resting on any clear reason, that there can be no larceny without a trespass. The rule, however, is well established.” (2 Bishop, 808, (703.) The taking by Blackburn might have been a trespass against the true owner of the estray, without being a trespass as against Esparza. If he had been indicted for stealing an estray gelding whose owner
If a person has taken actual control, and is in the full possession of a horse, so as to be responsible to the true owner for the disposition of it, and the horse is taken out of his possession by one having no right or authority, it is a trespass as against the temporary possessor, and if taken with intent to steal, the indictment may allege the horse to he the property of the person from whose possession it was taken.
Hence it was held that when “ a horse got loose from his owner, and was taken in the field of a third person and placed in his stable, from whence he was stolen,” it might he alleged to be the property of such third person, who had the actual possession. (Whart. Am. Cr. Law, sec. 1830 ; Owen v. The State, 6 Humph., 330.)
Upon the same principle this court has decided that if a thief steals ahorse from A, takes him to another county, sells him to B, and afterwards steals him from B, in a prosecution for the last theft the horse may properly he alleged to he the property of B, he being in the actual possession of the horse when last stolen by A. (King v. The State, 43 Tex., 352; Ward v. The People, 3 Hill, (N. Y.,) 393; 1 Hale, 537; Rosc. Cr. Ev., 633 ; Regina v. Smith, 9 Eng. Law and Eq., 532.)
Goods stolen from a laundress who has them in charge to wash them may he safely described as hers, because she is answerable for them to her employers. (3 Chit. Cr. Law, 947 ; 1 Leach Notes, 357.) So if a package be stolen from a coachman, the indictment may charge it to be his property. (Ib.) Hot so, however, if property be stolen from the possession of a servant, because they have the custody without a special property, or without a responsibility that enables them to sue for it if it were a mere trespass. How, whether the gelding ran in the range or was kept up, Esparza’s use of and control of him must have been so frequent, constant,
The court should have charged the jury that to convict the defendant on this indictment, charging the gelding to be the property of Esparza, they should be satisfied from the evidence that the gelding was in the actual possession of Esparza, or under his continued and exclusive control, at the time it was taken, if he was neither the owner nor had control of it by the authority of the owner; but if the gelding was an estray, running in the range without such possession or control when taken by Blackburn, that would not satisfy the allegation that he was taken from the possession of and was the property of Esparza.
The charge of the court should further have submitted the question, under the evidence, to the jury, whether Blackburn took the horse to use him temporarily as an estray, or to make property of him by converting him to his own use as a permanent appropriation.
Had such issues been submitted to the jury as were prominently suggested by the evidence and by the want of evidence before the jury on the trial, they would hardly have found the defendant guilty of theft and sent him to the penitentiary for five years for riding a stray horse one time during several days that one of his neighbors had been taking the liberty of riding occasionally during eight months previously in open violation of law, (Paschal’s Dig., art. 2441,) and which was confessed by the witness, Esparza, in open court.
We find no evidence in the record that made it reasonably certain that Esparza had such possession or exclusive continued control of the gelding, at the time he was taken possession of by Blackburn, as would justify the charge in the indictment that he was the owner of him, on the one hand; and on the other hand, it is not shown that Blackburn intended to make property of the gelding by convert
Therefore, because of the unsatisfactory character of the evidence on the trial, upon both of those points, and of the want of a charge of the court, submitting properly the issues to the jury, with reference to the evidence, there is error in the judgment, and it must be reversed and the cause remanded.
Reversed and remanded.