66 S.W. 301 | Tex. Crim. App. | 1901
Lead Opinion
Appellant was convicted of theft of cattle, his punishment assessed at confinement in the penitentiary for a term of two years, and prosecutes this appeal.
Appellant complains of the action of the court in permitting the witness Rambo to testify that defendant had told him that he had gotten the cattle from his uncle Bill Mills, and that he had a bill of sale for them, and drew an instrument from his pocket and handed it to witness to look at, and witness looked at it, and handed it back to defendant. The objection urged to this testimony is that it indicated there was better testimony, to wit, the written bill of sale, and the defendant had received no notice to produce the same. The bill does not disclose the contents of said bill of sale, unless it be conceded that the statement of the bill of sale contained was the same statement made by appellant to Rambo. We understand the State only proposed to use and did use the declaration made by appellant to Rambo, who looked at the bill of sale. It is not stated that he even read the bill of sale, or that he looked at its contents. He appears to have handed it back immediately to appellant. If the witness had made an improper statement as to the bill of sale, appellant had the opportunity to introduce the bill of sale himself; or if it was claimed that he did not then have the bill of sale, but desired to have *404 an opportunity to produce it, and had made such a motion, his contention here might be entitled to some consideration.
The introduction of the testimony of witnesses before the grand jury, and of grand jurors, as to what was done by the grand jury to ascertain the ownership or nonownership of the alleged stolen cattle, was entirely proper, and was in response to the allegations in the indictment. See White's Ann. Pen. Code, sec. 1507, subdiv. 2, for authorities.
This was a case of circumstantial evidence and the court did not err in giving a charge on that subject. We fail to find in the record any testimony indicating that Rambo was an accomplice, and the court did not err in not instructing the jury on that subject.
We do not understand the testimony shows that appellant relied on the purchase of the cattle from Jim Morgan or Jim Miller. If he had offered proof on this subject, then he could have claimed an instruction. The State's proof merely showed that he had told the witness he had gotten the cattle from Morgan or Miller, but that he subsequently came back to the witness and corrected this, and stated that he got the cattle from his uncle Bill Mills. And the charge of the court as to this explanation of purchase from Mills or his wife was all appellant was entitled to under the proof.
Appellant insists that the proof here is not sufficient to authorize a conviction for the theft of cattle belonging to an unknown owner, inasmuch as no such cattle were shown to be in that section, and no cattle belonging to an unknown owner were missed, and refers to Melton v. State (Texas Criminal Appeals), 56 Southwestern Reporter, 67, and Dawson v. State (Texas Criminal Appeals), 61 Southwestern Reporter, 489. This is not like the case of Melton v. State, in which there was proof as to the identity of the animal alleged to have been stolen. The animal was known in the community and the State claimed it to be the property of an unknown owner, whereas appellant claimed it as one of Young-blood's cattle, that he was authorized to gather. Here there was no pretense that ownership of the animals was known, or their identity known. Dawson's case is more like the case at bar. But that went off on other propositions than any involved in this case. In that case it was held that, where the State alleged that the ownership of the animals was unknown, it was incumbent on the State to prove this allegation. We also held that under an indictment of that character it was not competent to prove that certain parties in the neighborhood had lost cattle. It was further held that, where there was no evidence to show that the animals found in defendant's possession belonged to an unknown owner, the conviction could not be sustained. In this case the State offered evidence, under the allegations of the indictment, to show that the ownership of the alleged stolen animals was unknown, and, further, that appellant had no such animals of his own. It also showed the circumstances under which appellant procured the calves whose ownership was unknown, and that he claimed at the time that he got them from his uncle Bill *405 Mills. The main fact here was, did appellant steal the cattle whose ownership was unknown? In our opinion the circumstances adduced in evidence clearly establish this fact, and the jury were amply authorized to find the verdict they did.
There appearing no error in the record, the judgment is affirmed.
Affirmed.
Addendum
The judgment was affirmed at the Tyler term, 1901, and now comes before us on motion for rehearing. Appellant urgently insists that this case comes under the doctrine announced in the Dawson case (Texas Criminal Appeals), 61 Southwestern Reporter, 489, and that under the ruling in that case, this judgment should be reversed. His insistence is that there was no animal known in that community as an estray or the property of some unknown owner, and that no such animal was shown to have been missed.
In the original opinion in this case we endeavored to lay down what we understood was involved in the decision of the Dawson case. However, there are some expressions in that case which would indicate that, in the view of the court, the alleged stolen animal must prior to the theft be known as the property of some unknown owner, and identified as such. We do not believe that such expressions were necessary to the decision of that case; but, if they were, we do not understand that to be the law, and such expressions not in harmony with this opinion are hereby overruled. The statute relating to theft of property belonging to unknown owners is general in its terms, and comprehends the property of all unknown owners. White's Ann. Code Crim. Proc., art. 445; White's Ann. Penal Code, sec. 1483, subdiv. 3; Id., sec. 1507, subdiv. 2. Where an indictment alleges that property was stolen from an unknown owner, the unknown ownership must be proved as any other issue in the case. As was said in Dawson's case: "It is permissible, under our statute, for the grand jury to make diligent inquiry as to the true owner of cattle, and, not being able to find the owner after such inquiry, to allege in the indictment that said cattle were taken, being then and there the property of an owner unknown to the grand jury. But this does not absolve the State from proving that there were cattle belonging to an unknown owner, nor does it absolve the State from proving the usual and customary requisites, to wit: It must be proved that defendant took the animal; that the animal belonged to an unknown owner; that it was taken without the knowledge, will, or consent of said unknown owner, and with the intent to appropriate it to the use and benefit of the party so taking." Now, whether the animal was known in the community at the time as an estray or an animal belonging to some unknown owner, and this was the animal alleged to have been stolen, as was the condition in Melton's case (Texas Criminal Appeals), 56 Southwestern Reporter, 67, or whether the animal shown to have *406 been stolen was not previously known in the community, or on some account the State was not able to identify the animal as the property of any person, would make no difference. In either event, the State not being able to identify the property as belonging to a known owner, it would be the property of an unknown owner, and would be covered by our statute authorizing the allegation that it was the property of an unknown owner.
The motion for rehearing is accordingly overruled.
Motion overruled.