Walls v. State, 63 S.W. 328

Walls v. State

63 S.W. 328 | Tex. Crim. App. | 1901

Appellant was convicted of the theft of a horse, and his punishment assessed at two years confinement in the penitentiary, and prosecutes this appeal.

Appellant assigns a number of errors, but the only one that he appears to insist upon is the jurisdiction, or venue of the offense. The indictment was presented and the case prosecuted in Hopkins County. The proof did not show any actual taking by appellant in person in Hopkins County. However, it did show that the animal ran in Hopkins County and also in Delta. Appellant sold the animal to one Prim, the sale being consummated in Delta County. It appears that Prim was innocent of any knowledge that appellant had stolen or was stealing the animal in question. On the next day after the sale Prim went into Hopkins County and took and appropriated the animal he had bought from appellant the day before. Appellant requested an instruction to the effect that if the actual taking did not take place in Delta County to acquit. The court also gave an instruction to the effect that if defendant, in Delta County, sold the horse to Prim, and pointed it out on the range without taking possession of the same, but authorized Prim to take possession of it, and Prim afterwards did, in Hopkins County, take and appropriate said horse by virtue of said sale by defendant, then, and in that event, the venue was sufficiently proved to be in Hopkins County. So that the proof in connection with the requested charge and the charge given by the court presents the question of venue in every phase in which it could be presented. It appears from the proof as indicated above that Prim, the party to whom the horse was sold, and who took actual possession of same in Hopkins County, did so as the innocent agent of appellant. Prim's taking therefore, constituted appellant's taking. Penal Code, art. 77; Sikes v. State, 28 S.W. Rep., 688; 1 McClain Crim. Law, secs. 207, 211; People v. Adams, 3 Denio, 190; Commonwealth v. Hill, 11 Mass. 196; State v. Wickoff, 31 N.J. 65. The question of fraudulent intent at the time of the taking, as insisted on by appellant, does not apply. The innocent agent never had any *72 fraudulent intent. Appellant had the fraudulent intent when he procured his innocent agent to take possession of the property, and there is no question as to this. The charge of the court on recent possession was in accord with the decisions of this court. Wheeler v. State, 34 Tex.Crim. Rep.. Other objections to the charge, raised in motion for new trial, are too general to call in question any particular portion of the charge. However, we have examined the charge carefully, and in our opinion it is a correct and proper charge. There being no error in the record, the judgment is affirmed.

Affirmed.