11 Tex. 769 | Tex. | 1854
The appellant was indicted in Brazoria county, for stealing a rifle gun, of the value of fifty dollars, the property of Davis; he was convicted of the offence charged, and sentenced to two years’ hard labor in the penitentiary. There was a motion for a new trial, which was overruled, and an appeal to this Court.
There are several grounds assigned for error, but the only material points to be considered, are, error in the charge of the Court upon the law, and the refusal to grant a new trial. The gun had been obtained by the prisoner, under the following circumstances, viz: The prisoner applied to the prosecutor for the loan of his rifle gun to go a-hunting; the prosecutor supposed, the next day. Prisoner had frequently before borrowed it for the same purpose. Prosecutor delivered the gun to prisoner. On the next morning, prisoner procured a horse from a person in the same village, as he said, to ride down to Brazoria, to be returned the evening of the same day, or the next, if, as he said, he should get into a spree. He did not go to Brazoria, but went in an opposite direction, sold the horse and did not return at all, until he was brought back as a prisoner. The statement of facts does not show what was done with the gun ; there is no proof that the prisoner had converted it to his own use. The Judge charged the jury, that if they believed from the evidence, that at the time the prisoner obtained possession of the gun, under the pretence of borrowing it, he intended to convert it to his own use, it was a felony, and they must find him guilty. But if such was not his intention, at the time he obtained the possession, the subsequent conversion did not make it felony.
I have found nowhere the distinction more clearly stated between larceny at Common Law, and the statutory misdemeanor, than in the following extract from Alison’s Prin. Crim. Law of Scotland, 259, cited by Mr. Roscoe, p. 488 : “ When possession is obtained by such false representations, as “ induce the owner to sell or part with the property, the crime “ is swindling.” “ But a variety of cases frequently occur, “ in which the possession is obtained, not on any contract or “ agreement adequate to pass the property, but on some in- “ ferior title adequate to give the prisoner the right of interim “ custody. The distinction between such cases and those in “ which the property is obtained on false pretence, lies here : “ that, in the one case, the proprietor has agreed to transfer “ the property, and therefore he has only been imposed upon “ in the transaction; in the other, he has never agreed to part “ with his property, and therefore the subsequent appropria- “ tion is theft.”
This distinction seems to be very clear. In the one case, the
This distinction is laid down as correct by the Criminal Law Commissioners. In their report they say, “ The taking “ and carrying away are felonious where the goods are taken “ against the will of the owner, either in his absence, or in a “ clandestine manner, of where possession is obtained either by “ force or surprise, or by any trick, device, or fraudulent ex- “ pedient, the owner not voluntarily parting with his entire “ interest in the goods, and where the taker intends, in any “ such case, fraudulently to deprive the owner of his entire in- <£ terest in the property, against his will.” (1 R. 16, Roscoe, p. 469.) And this principle can be extracted from the several cases cited by Mr. Roscoe, and commented on by Mr. East, referred to above.
The counsel for the appellant would, by his argument, destroy the distinction in cases of this character between larceny at Common Law, and misdemeanor under the statute, for obtaining the goods by a false pretence, and that the offence was punishable as a misdemeanor under the statute, and not as larceny at Common Law.
We believe that the distinction is clear, as has been shown ; and that in this case, if the owner of the gun had only consented to a temporary transfer of the possession, without any intention to part with his property therein, and the prisoner, when he applied to him for the loan to be used in a particular way, intended to convert it to his own use, or to deprive the owner of his property, and did so convert it to his own use, it was a felony at Common Law, and not a misdemeanor under our statute.
We believe that there is no available objection to the charge of the Judge, to the jury, on the law of the case—-that it was fairly presented to them. The prisoner’s counsel asked the
We perceive no objection to the admissibility of the evidence in relation to the taking of the horse. It was a circumstance, showing and explaining the intention of the prisoner when he obtained possession of the gun, under the pretence of a loan, to go a hunting with it.
We, however, believe that the transcript of the record does not show that the fact of a conversion of the gun was established with that legal certainty, required in criminal proceedings. The intention and the conversion, were both essential elements in this case, to constitute the larceny charged in the indictment. The presumption is that the gun had been converted by the prisoner to his own use, depriving the owner of his property, or that the prisoner had failed to account for it, and, perhaps, this presumption would sustain a verdict in a civil suit; we, however, regard the rule to be different in criminal cases, and that nothing must be left to presumption ; that it must be shown to have been in proof, in criminal cases. It will be seen that in every one of the numerous cases of this kind, commented on by Mr. East, and collated by Mr. Eoscoe, it is shown that the conversion or appropriation by the prisoner, was proved. For this error, the judgment is reversed, and the case remanded to the District Court of Brazoria county, with instructions to the Clerk of that Court, to issue a mandate to the Sheriff of the county of Brazoria, requiring him to apply for and receive from the Superintendent of the penitentiary, the body of the appellant, Henry White, and him safely to keep in the jail of his county, until the next Term of the District Court for the said county, unless he, the said prisoner, shall give satisfactory bail, as required by law, for his appearance at the said Court. And it is hereby required of
Judgment reversed.