Lead Opinion

There is but one question that need be considered. There was evidence tending to prove that appellant purchased the mare from one Butler. Applying the law to this evidence, the court charged the jury: "In the taking of property, in order to constitute theft, it must be taken fraudulently. Therefore, if you find from the evidence that defendant bought the animal mentioned in the indictment from one Butler, you will acquit the defendant; and this, although you may believe that Butler acquired the animal unlawfully." Counsel for appellant objected to this charge, because "the latter part of the charge is not full and complete and sufficient, in this: It fails to instruct the jury that defendant would not be guilty, although they may believe that Butler acquired the animal unlawfully, and that the same was known to defendant at the time of said purchase."

We have frequently held, and still hold, under a charge of theft, there being proof that the accused was in possession of the stolen property recently after the theft, and the accused relying upon proof of purchase, or that he obtained, in any manner, possession of the property from another, to instruct the jury, that they must believe that the purchase or acquisition from another must be in good faith, was wrong. But it does not follow, because we have thus held in relation to such charge, that a charge under such a state of case would be erroneous because it failed, in terms, to instruct the jury, that if they believed that the accused bought the property knowing it to have been stolen they should acquit. The vice in the charges held by this court to be erroneous was in requiring the jury to believe that the purchase was in good faith, when in law the purchase or acquisition of the property from another would defeat a conviction for theft, whether in good or bad faith. If believed by the jury, it would establish the fact that the accused was not the taker of the property, and hence not guilty of theft.

Now, the charge under discussion requires the jury to acquit appellant if they believe from the evidence that he bought the mare from Butler, though they may believe that Butler had acquired her unlawfully. Acquisition of the mare by theft is certainly unlawful. Therefore, if the jury had believed that Butler had stolen the mare and sold her to appellant, obeying the instructions from the court they would have acquitted the appellant. But they were not told to acquit though he knew Butler had stolen the mare. True. But were they instructed to convict if appellant had knowledge of the theft? They were not, and beyond question, the instruction given authorized an acquittal though defendant had knowledge that Butler had stolen the mare. But it may be contended that the word "bought" implies that the purchaser acquired title, and *Page 49 as the mare was stolen, and as defendant may have known this, he acquired no title to "her, and therefore he did not buy her; that this view of the transaction may have been taken by the jury, and hence the necessity of the instruction desired by appellant. In article 10 of the Penal Code it is said: "Words are to be taken and construed in the sense in which they are understood in common language, taking into consideration the context and subject matter relative to which they are employed." Now, we venture the assertion that there is not one juror in five hundred who would not have used the word "bought" or "purchased" relative to this transaction between appellant and Butler, though appellant may have known that Butler stole the mare.

There is no error in the charge. The judgment is affirmed.

Affirmed.

Dissenting Opinion

I can not concur in the decision rendered. I hold that under article 677, Penal Code, requiring the court to distinctly set forth the law applicable to the case, it was the duty of the court to charge the jury, that if they believed defendant had purchased the horse they should acquit defendant, though they might believe when he purchased the horse from Butler defendantknew that Butler had stolen it or acquired it unlawfully.

It was not sufficient merely to charge, that if defendant bought the property they should acquit, though Butler may have acquired the horse unlawfully. This charge would readily be understood by the jury as instructing them not to convict if Lynch bought the horse without knowing that Butler had stolen it, for they knew that a man may honestly buy stolen property, even though it has to be surrendered subsequently to the owner. But there are but few average juries who willingly let a man go, apparently, unwhipt of justice who has colluded with a thief and purchased his stolen property. It is seldom explained to the jury, that while the law regards the receiver as bad as the thief, it yet holds the two offenses distinct, and requires an indictment for receiving stolen property before one can be convicted therefor. But it is a common understanding among all the people, that one purchasing property knowing it is stolen, is as guilty as the thief, and without definite and clear instructions they will rarely let a receiver escape. Not only is this the opinion of the average man, but this court has been called upon to reverse many cases where district judges have limited acquittals to purchases in good faith. Appellant in this case either stole the horse or bought it knowing it was stolen by Butler. There is, in my judgment, little or no proof of the first proposition, but the evidence strongly supports the last. (The Reporter will insert the testimony.) He was convicted of theft because the law was not distinctly and substantially charged, and I think the case should be reversed. *Page 50