25 S.W. 290 | Tex. Crim. App. | 1894
1. Appellant was convicted of theft of property over $20 in value, and his punishment assessed at eight years in the penitentiary. The indictment alleges the ownership and possession of the property at the time it was taken to be in F.G. Bledsoe, and the court charged alone as to such ownership and possession. Appellant insists that the evidence clearly establishes the ownership to be in Bledsoe, and the care, control, and management of the property, at the time it was taken, to be in one J.M. Little, and that the court should have submitted this issue to the jury. The evidence shows that Bledsoe owned two gins — one at Hutchins, where he lived, and the other at Lancaster, five miles distant, near which place J.M. Little resided and superintended this gin for Bledsoe. It was from this gin, sometime in June or July, that five pieces of leather belting were stolen. On the question of possession, Bledsoe, on cross-examination, testified: "I left the belting in charge of J.M. Little. He superintended and managed the gin, and had charge of it. It was under his control and management at the time the belting was taken. He lives a mile from the gin. I went there probably once a month. I ran a gin at Hutchins, to which I gave my attention." Again, on recross-examination, witness stated: "He (Little) was my agent as to the gin all the time. He was in control and possession of the gin all the time, and of all the gin property, including the belting alleged to have been taken." So J.M. Little testifies: "I put the belting away; it was in my possession to look after and care for." We think this testimony imperatively required that the court should have submitted to the jury the issue whether J.M. Little had the possession, care, and management of the property at the time it was stolen; and if so, to acquit defendant. Willson's Crim. Stats., sec. 1258; Emmerson's case, ante, p. 89; Code Crim. Proc., art. 677.
2. Appellant complains that the court erred in not also submitting the issue whether the property was all taken at once, and whether belting of the value of $20 was taken at any one time. The evidence shows that the leather belting consisted of five pieces, three of which were worth $24 each, and the other two of less value. There is no evidence as to the exact time, or as to the manner, of the taking. The evidence *96 simply shows that it was all taken, and that appellant on two occasions, about two weeks apart, sold a quantity of the belting to various parties, who bought it at one-tenth of its value. We can see no suggestion in this testimony that appellant took away the belting by piecemeal — that he took less than a single piece at a time — and we do not think the court erred in refusing to submit the issue. We see no further error in the matters complained of; but for the error in not submitting the charge as to the custody, control, and management of Little, and because the evidence clearly shows that the property, at the time it was taken, was in the control and possession of J.M. Little, this cause is reversed and remanded.
Reversed and remanded.
Judges all present and concurring.
