Houston v. State , 98 Tex. Crim. 280 ( 1924 )

Appellant was convicted in the District Court of Nacogdoches County of theft, and his punishment fixed at two years in the penitentiary.

A bale of cotton weighing 610 pounds and of the value of more than fifty dollars was in the cotton yard of Windham, et al. A sample of same and the ticket containing the number, weight and owner's name were in the office.Appellant was about the premises and one of the proprietors suggested to a witness to watch appellant. This witness testified that he saw appellant take a certain sample, put it under his coat and walk out. The next day appellant went to witness Brown and by means of his possession of the ticket and sample, sold Brown the bale of cotton called for by the ticket for $118.45. Brown gave appellant a check for that amount in payment for the cotton and had same removed from the cotton yard and shipped away. Thrash, the real owner of the bale of cotton, discovered its loss and the matter was traced to appellant. He at first denied having sold the cotton, but when confronted by Brown and the check given, he could no longer deny it but made arrangements to reimburse the loss.

Our statute on principals, Art. 77, P.C., makes one a principal who causes an innocent agent to commit a crime; and many authorities are cited by Mr. Branch in Section 683 of his Annotated P.C. in support of this proposition. Cases applying the doctrine to one who sells the property of another who later removes the property so sold from the possession of the owner, are numerous and harmonious. Farris v. State, 55 Tex. Crim. 481; Walls v. State, 43 Tex.Crim. Rep.; Lane v. State, 41 Tex.Crim. Rep.; Sikes v. State, 28 S.W. Rep., 688; Dale v. State, 32 Tex.Crim. Rep.; Doss v. State, 21 Texas Crim. App., 509; Madison v. State, 16 Texas Crim. App., 442. The facts in the instant case seem to fully support the proposition that by appellant's sale of the cotton to Brown the latter was caused to remove and appropriate to his own use the bale of cotton involved, and this meets the requirements of the law as announced in the cases cited and makes appellant the taker of said cotton. It follows that we do not agree with appellant's contention that the proof makes a case different from that set out in the indictment.

An indictment charging theft of one bale of cotton of a certain value and alleging the ownership thereof, is not open to the objection that it does not sufficiently describe the property taken. Article 458, Vernon's C.C.P., and authorities collated.

The property being in the care, control and management of a partnership composed of Windham and others, it was sufficient to allege ownership in Windham. Article 457, Vernon's C.C.P., and authorities. Possession and taking of the cotton ticket being a necessary part of the development of the transaction by which Mr. Brown was induced by appellant to remove the cotton from the yard, it was not error for the State to prove by Windham that appellant told him that he, appellant, took said ticket from the office.

We have carefully examined the various special charges requested by appellant and think them not called for by the facts, or else to be so little at variance with the law as stated in the main charge of the court, as that their refusal was not error. Nor do we find any of the parts of the court's charge as given, open to the exceptions set out in several bills of exception by appellant. Nor are we able to agree with appellant in his complaint of the court giving the jury forms for their verdict in case of acquittal or conviction.

After the jury retired they sent in a written request to the learned trial court to know if they might give appellant a suspended sentence to which he replied in writing in the negative. This was proper. No plea for suspended sentence was filed and no evidence introduced on the issues made available under such application. Speer v. State, 171 S.W. Rep., 201; Muldrew v. State, 73 Tex.Crim. Rep.; Lozano v. State,83 Tex. Crim. 597.

Finding no error in the record, an affirmance will be ordered.

Affirmed.

ON REHEARING.