No. 2630 | Tex. App. | Oct 26, 1887
It was alleged in the indictment that the stolen horse belonged to and was taken from the possession of one M. C. Doyal. It was proven that Boyal was the owner of the horse; that it. left his premises in Gonzales county, and strayed off with a bell upon it on the seventeenth of July; was seen in Caldwell county on the eighteenth, some twelve miles from home. On the twenty-first it was taken up by one Hurst, who, after making inquiry for the owner and failing to find him, took the horse to his home, intending to estray him, and there staked him out in his field and also fed him. That night the horse was taken from Hurst’s field, and the next seen of him he was in possession of defendant on the twenty-fourth, in the county of Be Witt, where he, defendant, sold him to one Jones.
On this state of facts it is insisted there was and is a fatal variance between the allegation and proof as to the party from whose possession the animal was taken. In a word, it is urgently claimed that the animal was stolen from the possession of Hurst and not of Boyal. If Hurst had simply found the animal an estray upon' his premises, and, without taking actual manual possession and control of him, had only taken steps to estray him, it seems that until he had complied fully with the laws regulating estrays, such constructive possession would not have conferred upon him a sufficient special ownership to justify an allegation that he was the owner in possession, should the animal have been stolen from him. (Blackburn v. The State, 44 Tex., 457" court="Tex." date_filed="1876-07-01" href="https://app.midpage.ai/document/blackburn-v-state-4892644?utm_source=webapp" opinion_id="4892644">44 Texas, 457; Lowe v. The State, 11 Texas Ct. App., 253.) If, however, he had complied with the laws regulating estrays, then, indeed, he would have had such special property as would support an allegation of ownership in him. (Cox v. The State,
In Blackburn’s case, 44 Texas, 462, Roberts, Chief Justice, says: “If a person has taken actual control, and is in the full possession of a horse so as to be responsible to the true owner for the disposition of it, and the horse is taken out of his possession by one having no right or authority, it is a trespass as against the temporary possessor, and, if taken with intent to steal, the indictment may allege the horse to be the property of the person from whose possession it was taken. Hence it was held that when a horse got loose from his owner, and was taken in the field of a third person and placed in his stable, from whence he was stolen, it might be alleged to be the property of such third person who had the actual possession.” (Citing Wharton’s Crim. Law, sec. 1830; Owen v. The State, 6 Humphrey, 330.)
In Littleton’s case, 20 Texas Court of Appeals, 174, Judge Hurt pertinently and forcibly says: “The indictment must allege that he (defendant) took the property from the possession of some person. This person must be named, and this person must have possession, actual or constructive, of the property at the time it is taken. If his relation to the property is rendered closer or nearer than that of the real owner, by reason of the fact that he is in actual care, control or management of the same, then, in that case, the person bearing such relation is the proper person in whom to allege possession; in other words, from such person the possession must be alleged to have been taken. Why? Because such person occupying such relation to the property is apparently the real owner, and the rule which requires that the indictment name the owner applies with equal force in the case stated.”
We are of opinion that there is a fatal variance between the allegation and proof as to the person from whom this defendant took possession of the horse. At the time he was not in Doyal’s, but was actually in the possession, care, management, control
Appellant requested an appropriate instruction upon this point, which was refused.
The judgment is reversed and the cause is remanded.
•jReversed and remanded,