Lacy v. State , 31 Tex. Crim. 78 ( 1892 )

Defendant was indicted for horse theft in Matagorda County, the venue changed by agreement to Wharton County, where the trial resulted in a conviction, and his punishment assessed at five years in the penitentiary. There are three questions that need to be considered in this case.

1. The defendant objected to the indictment on the ground that one of the grand jurors was an alien, and was unauthorized to sit on the grand jury and participate in the proceedings, and that he had a right to raise this objection, under article 523, Code of Criminal Procedure. The objection goes simply to the qualification of the grand juror, and was correctly overruled, upon wise principles of public policy. The statute limits the right to set aside an indictment to a few specified grounds, prescribed in article 523, Code of Criminal Procedure, and an objection to the want of qualification of a grand juror, after an indictment found, can not be entertained. Owens' case, 25 Texas Ct. App. 555[25 Tex. Crim. 555]. In Woods' case, 26 Texas Court of Appeals 490[26 Tex. Crim. 490], where the plea in abatement to the indictment set up the fact that one of the grand jurors was a convicted felon, there is an intimation that the defendant might move to set aside the indictment on the ground that a person not authorized by law was present when the grand jury were deliberating upon the accusation against the defendant, or were voting on the same. Code Crim. Proc., art. 523, subdiv. 2. Defendant's motion in the case at bar was upon this ground. But this was declared to be mere dictum in Doss' case, 28 Texas Court of Appeals 510[28 Tex. Crim. 510], and article 523, subdivision 2, was held not to apply to persons who were impaneled as grand jurors.

2. The defendant complains of the charge of the court in its second paragraph, to the effect, "that if the mare was Baxter's property, and if defendant gave a reasonable account of his possession, showing such possession to be honest, such account must be taken as true, until overcome by evidence satisfactory to the jury, beyond any reasonable doubt, that the possession was fraudulent." This charge was error, and was properly excepted to. This court, by repeated decisions, has held that if defendant, in possession of stolen property, give an explanation of his possession that is natural, reasonable, and probably true, it then devolves on the State to prove that the explanation is false. Neither is it necessary for defendant to show that this possession was honest. On the contrary, his possession may be dishonest and fraudulent, and his explanation may so show, and yet defendant may not be guilty of theft. Thus if, after the theft, he purchased the horse, knowing it to be stolen, he could not be convicted of theft, because he was not concerned in the original taking, yet the defendant may be convicted of receiving stolen property.

In Curlin's case, 23 Texas Court of Appeals 681[23 Tex. Crim. 681], where the court charged, "If you believe the defendant bought the heifer in good faith, he would not be guilty," defendant claimed to have bought the heifer from two strangers. This court reversed, because the charge authorized a conviction, even though he was not engaged in the original taking. Roberts' case, 17 Texas Ct. App. 83[17 Tex. Crim. 83]; Lee's case, 27 Texas Ct. App. 475[27 Tex. Crim. 475]; Fernandez's case, 25 Texas Ct. App. 538[25 Tex. Crim. 538]; Clark's case, 27 Texas Ct. App. 414[27 Tex. Crim. 414]; Prator's case, 15 Texas Ct. App. 363[15 Tex. Crim. 363]; McAfee's case, 14 Texas Ct. App. 668[14 Tex. Crim. 668]; Bond's case, 23 Texas Ct. App. 180[23 Tex. Crim. 180]; Shuler's case, 23 Texas Ct. App. 182[23 Tex. Crim. 182].

3. Insufficiency of evidence. The evidence in this case is not satisfactory. Not only does the owner seem never to have taken the trouble to identify his own property, though living within three miles of defendant, and hearing that it was taken up by defendant, but the brand on the alleged stolen animal was KMY, the K being reversed, while the brand on Baxter's mare was HA connected, the bar of the H running across the A also; yet the animal claimed by defendant had no evidence of the bar or blotch, even if it be admitted that the HA brand could have been changed into the KMY brand; and, while the similarity between the animals was admitted, yet there is a dispute in the description of feet, mane, and tail. Again, defendant rode this animal in open day in the neighborhood of the alleged owner, admitting it looked like his mare, but stating that he had bought it from two Mexicans, and had paid them $15. The judgment is reversed, and cause remanded.

Reversed and remanded.

Judges all present and concurring.