Landreth v. State , 44 Tex. Crim. 239 ( 1902 )

The judment was affirmed at a previous day of this term, and now comes before us on appellant's motion for rehearing. His first ground is based on the alleged insufficiency of the evidence to establish the corpus delicti, for the reason there is no evidence aliunde appellant's confession showing or tending to show theft. We are referred to Willard v. State, 27 Texas Crim. App., 386; Attaway v. State, 35 Tex.Crim. Rep.; Ewing v. State, 29 Texas Crim. App., 434; Hill v. State, 11 Texas Crim. App., 139. There is no question as to the correctness of those decisions, and it is doubted if an authority can be found that will maintain the proposition that an extrajudicial verbal confession forms a sufficient predicate for the conviction for theft or any other crime. The Attaway case lays down the proposition that the confession can be used to connect a defendant or party on trial with the offense after the corpus delicti is proved; in other words, where the facts show an offense, but fail to connect any individual with that offense, the confession of the party on trial is sufficient predicate to connect him with that offense and justify his conviction. Kugadt's case, 38 Tex. Crim. 681, extends the rule a little farther, and decides that the confession may be used to assist in proving the corpus delicti. But we know of no case that questions the rule in the Attaway case. The weight of authority seems to support the decision in the Kugadt case. The rule sought to be invoked by appellant has no application to the case in hand. Appellant was found in possession of the animal, and when his possession was challenged he stated that he took it up "in Stith's pocket" on the authority of one Matthews, who, he says, informed him that it belonged to a relative of Matthews, living in Arkansas. Another statement of appellant, later on, was that he bought it from a party. It occurs to us, there is no question that this proves the corpus delicti. It appears that appellant had the horse; that it did not belong to him. He claims to have taken it up by virtue of authority from Matthews, at one time; at another time, claims to have bought it from a stranger in the road; and, later on, sold it in a distant county under an assumed and false name. In Hill's case, supra, the only evidence was his confession made outside of court to his half-brother, Jewett. The State relied exclusively upon the confession. In regard to the corpus delicti, in Hill's case, the evidence was that the horse was in the field, and disappeared at night. Appellant's confession was that he took the horse and put it in Jim Pierce Wright's cattle herd, and it was taken "west." There was evidence that the horse disappeared from the field, but none that appellant ever had it in possession, nor anything to do with its disappearance, outside the confession. There is no analogy between this and that case.

Another ground of the motion is that the court erred in requiring appellant to prove the account he gave of his possession beyond a reasonable doubt. We do not so understand the charge. That portion of it referred to is as follows: "If you find from the evidence, beyond a reasonable doubt, that the horse mentioned in the indictment had been stolen from some person to the grand jurors unknown, and that recently thereafter the defendant was found in possession of said horse," etc. The reasonable doubt does not apply to the account given by appellant, but to the theft of the horse.

It is again urged that the evidence is not sufficient; the main insistence being that the animal was an estray, and not the property of an unknown owner. Ordinarily speaking, an estray would be regarded as the property of an unknown owner. The witnesses testifying as to this phase of the case speak of it as being an estray, and that the owner was unknown, etc. We do not believe there is any merit in this contention. The evidence is amply sufficient.

The motion for rehearing is accordingly overruled.

Motion overruled.