Lewallen v. StateLewallen v. State
- Reporters:
- , ,
- Before:
- Davidson
Thе indictment charges that appellant obtained and had possession of a horse by contract or hiring and subsequently fraudulently converted the animal to his own usе. 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, instеad of the word “his” the word “is” is used in the charge, in the following portion of said chargе, “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 critiсism is hypercritical. Applying the law to the case, the judge instructed the jury: “If you beliеve from the evidence beyond a reasonable doubt A. H. Lewallen, alias W. N. Pеters, alias G. G. Bussell, in the County of Bobertson and State of Texas, on or about the 16th day of June, A. D. 1904, was in possession of a horse, the property of P. M. Nichols, by virtue of а 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 fraudulеntly convert said horse to the said Lewallen’s, alias W. N. Peters, alias G. G. Bussell, 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 thеory upon which the jury could have been misled by the omission of the letter “h” in the word “his” sо 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 betwеen appellant and Nichols. It simply charges the jury that if they should believe from thе evidence that appellant was in possession of the horse, the prоperty 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 evidencе 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 thеy must find as a matter of fact that appellant was in possession of this horse by virtuе of a contract between himself and the alleged owner.
The jury were further сharged 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 а reasonable doubt whether Smith hired or disposed of the horse, they should acquit. Aрpellant’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 оbtained 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 аppellant made a contract with Nichols and hired the horse to make a trip into the country from Temple. The evidence on this proposition is direсt and positive. The evidence is direct and positive that he had possessiоn of the horse in Robertson County and sold him. The only possible theory under the State’s сase indicating other than positive evidence in regard to the whole transаction arose by reason of the fact that Nichols having sent the horse by a hirеd hand from the stable to the hotel could not swear that the hired hand delivered thе 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 faсt 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.