87 S.W. 1159 | Tex. Crim. App. | 1905
The indictment charges that appellant obtained and had possession of a horse by contract or hiring and subsequently fraudulently converted the animal to his own use. The questions are raised on the motion for new trial, there having been no bills of exception reversed. In copying the statute under which the indictment was framed, instead of the word "his" the word "is" is used in the charge, in the following portion of said charge, "convert said property to is own use with intent to deprive the owner of the value of the same." Exception is reserved to this. We are of opinion this criticism is hypercritical. Applying the law to the case, the judge instructed the jury: "If you believe from the evidence beyond a reasonable doubt A.H. Lewallen, alias W.N. Peters, alias G.G. Russell, in the County of Robertson and State of Texas, on or about the 16th day of June, A.D. 1904, was in possession of a horse, the property of F.M. Nichols, by virtue of a contract of hiring with the said F.M. Nichols, and that the defendant did then and there unlawfully and without the consent of the said F.M. Nichols, the owner thereof, if he was the owner, did fraudulently convert said horse to the said Lewallen's, alias W.N. Peters, alias G.G. Russell, own use and with the intent to deprive the said F.M. Nichols of the value of the same, you will *285 find the defendant guilty as charged," etc. We think this charge was sufficient. There was no possible theory upon which the jury could have been misled by the omission of the letter "h" in the word "his" so as to make it read "is" in copying the statute. Nor do we think the charge above quoted assumes as a matter of fact that there was a contract between appellant and Nichols. It simply charges the jury that if they should believe from the evidence that appellant was in possession of the horse, the property of Nichols, by virtue of the contract, etc. This does not assume that there was a contract, but leaves it a matter to be found by the jury from the evidence beyond a reasonable doubt, that appellant was in possession of the horse, and this by contract of hiring. Before they could convict under this charge they must find as a matter of fact that appellant was in possession of this horse by virtue of a contract between himself and the alleged owner.
The jury were further charged in this connection, if they should believe from the evidence that Smith hired the horse from Nichols, or disposed of the horse to appellant, or if they had a reasonable doubt whether Smith hired or disposed of the horse, they should acquit. Appellant's theory was, shown through his witness Smith, to the effect that he obtained the horse from Smith, and that Smith was the party who hired the horse. Smith having testified that he was the man who obtained the horse from Nichols and subsequently traded it to appellant. This defensive theory was properly submitted to the jury.
Nor do we think there was error in failing to charge the law of circumstantial evidence. The testimony for the State shows that appellant made a contract with Nichols and hired the horse to make a trip into the country from Temple. The evidence on this proposition is direct and positive. The evidence is direct and positive that he had possession of the horse in Robertson County and sold him. The only possible theory under the State's case indicating other than positive evidence in regard to the whole transaction arose by reason of the fact that Nichols having sent the horse by a hired hand from the stable to the hotel could not swear that the hired hand delivered the horse in person to defendant. But the contract is testified to most positively; the possession is shown by equally positive evidence, and the appellant's evidence does not suggest circumstantial evidence. In our judgment the mere fact that it was not shown that the hired hand delivered the horse personally to appellant would not take it out of the realm of positive evidence under this record. We believe the charge as given was a fair presentation of the law, and that no injury is shown by this record. The judgment is affirmed.
Affirmed. *286
