Gentry v. State , 41 Tex. Crim. 497 ( 1900 )

Appellant was convicted of horse-theft, and his punishment assessed at confinement in the penitentiary for a term of five years.

He made a motion for continuance on account of the absence of the witnesses Berry and Burrus. It is not necessary to discuss Burrus' testimony further than to state that he proposed to prove by Burrus that he (Burrus) was branding horses in the brand found upon the stolen animal, and had branded an animal of like description to the one charged to have been stolen; but defendant himself admitted branding the animal in question. By Berry he expected to prove that he (Berry) was the owner of the Bar;B brand; and that defendant was only the agent of Berry. As before stated appellant admitted branding the animal in question, and whether or not he branded it for Berry would be immaterial, in view of the fact that he admitted branding the same. Berry was not in the country at the time, and had not been for some time. If defendant branded the animal, as he stated, the evidence that Berry owned the brand would make no difference. If he, as the agent of Berry, branded this animal, knowing at the time it did not belong either to himself or Berry, it would make no difference whether Berry owned that particular brand or appellant. As the hired hand or employe of Berry, he had no right to steal another man's horse for his employer, and would be equally guilty. A hired hand might be excusable for doing certain acts, if he did so in good faith, believing he had a right to do the act for his employer; but he could not justify or excuse himself if he took the property fraudulently, knowing it was not his employer's. The application was properly refused.

This is not a case of circumstantial evidence. The court did not, therefore, err in failing to charge upon this phase of the law. Defendant admitted branding the animal. This, in connection with appellant's possession, constitutes taking.

Nor was it error for the court to refuse to charge the jury that they must believe appellant participated in the original taking. The court sufficiently charged this phase of the law, and it is unnecessary to repeat the charge in a different form. Besides, appellant admitted branding the animal, and his defense was: First, that of mistake; and second, that it was the colt which, on two different occasions, he stated was the colt of two different mares in Berry's brand.

The indictment charged possession of the property in John Callahan, Sr. The alleged owner testified he was blind, and could not attend to his stock; but his sons attended to them for him. John Callahan, Jr., testified he was living with his father, and looked after the stock for him. Now, it is contended, under this state of facts, that the court should have charged the jury, if the property was in the actual care, control, and management of John Callahan, Jr., the jury should acquit. Where the property is owned by one person, but in the actual care, control, and management of another person, ownership could be alleged in the real owner and the possession in the special owner. But it is equally true that the possession and ownership could both have been charged in the special owner. Bailey v. State, 18 Texas Crim. App., 426; Frazier v. State, Id., 434. But that law does not apply here. John Callahan, Jr., was living with his father, and was part of his family, and did not occupy the relation of special owner, but simply controlled the horses of John Callahan, Sr., under the immediate direction of his father. Where that is the case, the ownership, care, control, and management is in the father, and the child or servant simply manages under the direction of the real owner. The evidence does not show the actual control and management of the property in the son as against or to the exclusion of his father, but he was under his (the father's) direction, control, and management. It is never necessary for the State to prove the want of consent, except of the party in whom ownership is alleged. If, in fact, defendant had the consent of a third party to take the property, this was a defensive matter. This question has been so thoroughly settled in this State that we deem it unnecessary to cite authorities.

The court definitely and fully submitted the issue of honest mistake on the part of defendant in taking the animal, and the title in Berry, and told the jury in either event they should acquit. Appellant asked a special charge presenting the same matters, which was refused, and properly. It had been fully given in the main charge, as stated. We think the evidence justified the conviction, and the judgment is affirmed.

Affirmed.

ON MOTION FOR REHEARING. (March 23, 1900.)