Clark v. State

27 Tex. Ct. App. 405 | Tex. App. | 1889

Hurt, Judge.

This is a conviction for the theft of a horse in the Cherokee Nation, Indian Territory, and bringing the same into Tarrant county, Texas, the prosecution being under articles 798 and 799 of the Penal Code.

There was no error in receiving in evidence the laws, of the Cherokee Nation, unless the fact that appellant is a white man defeats the prosecution. Hence the question is, under the provisions of the above articles of our code, construed with reference to the laws of the Cherokee Nation and the acts of Congress bearing upon this matter, can a white man be legally prosecuted to conviction for stealing in said Nation, and bringing the stolen property into this State? The counsel for appellant, in a masterly argument, contends that a white man can not commit the offense of theft against the laws of the Cherokee Nation; or, to present the question in another form, that the act committed by appellant would not be a theft under the laws of the Cherokee Nation; that, as a white man can not be punished for violating any law of the Nation, but is punishable for his acts committed in the Nation by the federal courts, and punished because such acts have been denounced as an offense by an act of Congress, the articles of our code cited can not apply to or embrace white men.

This is a plausible, yea, a strong position, and was supported at Tyler by a most cogent argument by Mr. Stuart. It is contended that, though the acts committed by appellant are forbidden by positive law (of the Nation) with punishment annexed on conviction, yet as appellant, because a white man, could not be punished under the said law, therefore he could not commit the offense in the Territory as required by article 798. This article must be construed in connection with article 799, which reads as follows: “To render a person guilty under the preceding article it must appear that, by the law of the State or Territory from which the property was taken and brought to this State, the act committed would also have been robbery, theft or receiving stolen goods.” The act must appear to be theft by the law of the Territory.

Did it so appear? This is not denied by appellant, but he replies through counsel that he can not be punished under the territorial laws, and where there is no punishment there can be no offense. The law of the Nation is broad and comprehensive in its terms. It says: “Every person who shall wilfully take and steal ahorse,” etc. It is not confined to Indians, nor does it except from its operation white men. An indictment against an Indian, to be sufficient, would not have to allege that the accused was an Indian, or negative that he was a white man. Therefore, whether the act, theft, be committed by an Indian or white man, it is forbidden by positive law, and there is annexed, on conviction, a prescribed punishment. The language of the act of the Territory is not such as makes the fact that the person was an Indian an element of the offense. If this had been the case, no person except- an Indian could have been guilty, though he may have committed all the acts denounced as theft. But the law is not thus written; it embraces every person, white, black, or Indian. The act committed by. appellant therefore was, by the law of the Territory, theft.

But, says counsel for appellant, it was not theft in appellant, because for want of jurisdiction, the courts of the Territory could not punish him. The act of the Territory defining theft embraces every person, and there is punishment annexed to its violation. This is not a case in which the law denounces acts as a crime, but fails to annex a penalty to such crime. To the contrary, all persons are embraced, and for a violation a penalty is prescribed. How, then, does the fact that appellant can not be punished under the Territorial law negative or refute the conceded actual facts, viz: That he, in fact, did commit an act in said Territory; that the act committed was theft, and that it was theft by the law of said Territory, whether committed by an Indian or white man? If the act committed is theft by the law of the Territory, and is theft here, and the stolen property is brought to this State, the party should have been convicted whether he could have been punished under the laws of the Territory or not. This is our deliberate conclusion after mature reflection.

Second assignment. The court erred in not defining and construing in its charge to the jury the law of the Nation, and in leaving the question to be determined by the jury without appropriate instructions. In this there was no error. The laws of the Nation were introduced in evidence. The court should have instructed the jury that certain acts, by said laws, constitute theft, leaving it to the jury to determine whether the defendant was guilty of such acts, and this was done by the court. But suppose the matter was left to the jury and they held that said acts did, by the laws of the Nation, constitute theft. We have the acts of the defendant before us, and we are of opinion that the jury’s construction of said law was correct; and there is no injury.

Third assignment. The court erred in not presenting affirmatively in the charge defendant’s theory of the case, which was that he had purchased the horse from hands working for B. C. Evans, in Wise county. Bearing upon this matter, the court charged the jury: ‘When the possession of the property recently stolen is relied upon as a criminative fact, if such possession is proven, and the person in whose possession such property is found, when his possession is first questioned, makes a reasonable explanation of his possession, the evidence must show that such explanation is false before such possession would, of itself, warrant a conviction.” Appellant was found in possession of the stolen property. He explained by stating that he had purchased it from the hands of Evans, in Wise county. The purchase was his reasonable explanation of his possession. The jury were told that before his possession could be used against him, if reasonably explained, the evidence must show it false. Under the facts of this case, this charge was correct.

Opinion delivered March 23, 1889.

We find no error in the record, and the judgment is affirmed.

Affirmed.