Goodson v. State

32 Tex. 121 | Tex. | 1869

Lindsay, J.

The prisoner in this case was charged with the theft of horses. The proof showed, that after the property was stolen, he was found in possession of the property some sixty-five miles from the place where they were stolen, some five or six days after, and was unable to give any satisfactory account of his possession, nor did he attempt to do so when overtaken by the owner of the property. On the contrary, when the owner and his party came upon him, he attempted to make his escape, by slipping out of the back door of the house where he had stopped, and near which the stolen property was staked out, and wherein he was arrested. Then and there, from aught that appears in the evidence, no explanation was vouchsafed or made as to the manner of his acquiring possession; nor did he call upon the persons at whose house he was to state the facts to the owner of the property, upon which he based his application for a continuance of the case at the calling of it for trial, on account of the absence of those very persons, wdio were then present, and of his professed inability to procure their attendance. The grounds for continuance, as set forth in the affidavit, were insufficient, and the court committed no error in overruling the application,

It is insisted, however, that the judgment ought to have been arrested upon the motion for that purpose, because, it is contended, there is no charge of a fradnlent intent, or of an intent to appropriate thb property to the use of the fradnlent taker. The court does not so interjiret the indictment. It is expressly charged, that the prisoner did “ unlawfully, fraudulently and feloniously take, steal and carry away from the possession of Pleasant Hicholls.” Here the fraudulent intent is distinctly alleged. It is also positively charged, that this fraudulent taking, without the consent of the owner, was done with intent to appropriate it, to-wit: “ one bay gelding and one bay mare, to his own use and benefit.” It is supposed, that because the singular pronoun it is used in reference to the mare and horse, it is such vagueness and uncertainty in statement as vitiates the pleading. The mere flesh of the animals is not the real predicate of the theft. Theft can not be affirmed of animals feres ncotures. It is not, therefore, the naked taking of the animals which constitutes the theft, but it is the fraudulent taking and appropriation of thbproperty in the animals claimed and possessed by general or special ownership which is the real corpus delicti in this offense. The ownership in these animals was distinctly charged, and the personal pronoun it, instead of having the mere flesh of the animals for its antecedent, is necessarily referred, both in grammatical and legal construction, to the propeei'ty in the animals, which is involved in the term ownership.

Wherefore, the judgment of the court is affirmed, and the sentence of the law ordered to be pronounced.

Affirmed.