Thomas v. State , 83 Tex. Crim. 282 ( 1918 )

Appellant was convicted of theft and his punishment assessed at two years confinement in the penitentiary.

The property stolen was an automobile belonging to Jewell Ansley. Ansley drove his car to the fair grounds at Dallas and stored it in Crum's wagon yard in the fair grounds. There was evidence from which the jury were justified in concluding that appellant took the car from the wagon yard without Ansley's consent and was afterwards found in possession of it. He explained his possession by claiming that he got it from a man by the name of Savage. Circumstances were sufficient to rebut the truth of this statement.

There are no bills complaining of the charge or of errors committed on the trial. In motion for new trial appellant challenges the sufficiency of the evidence to show ownership. Ansley testified he left his automobile at Crum's wagon yard, gave no one consent to remove it, and afterwards found it was gone. He said: "I turned the car over to the man at the gate. He gave his name as J.S. Crum, and I told him I would be there until late in the afternoon. He said, ``All right; everything was safe.'" B.D. Crum, the son of J.S. Crum, testified that the man whom he thought he identified as appellant got the car and that the witness had been at the yard about ten minutes when the man whom he took to be appellant came and said: "I am going to go and look for him and get this car." He took the car and went toward town; that he thought appellant was the owner of the car.

It would seem that Crum, the keeper of the wagon yard, was the mere custodian of the car and that his possession of it was not such as to bring about a variance under the facts between the proof and allegation of ownership. There are many cases cited by Mr. Branch in his Ann. P.C. under the proposition. Page 123 he says: "Property in the mere custody of a servant or other person is and may be alleged to be in the possession of the owner if no special owner had possession." And page 1324: "The mere custody of property by an employe or servant of the general or special owner does not operate to take the property out of the possession of such owner." Among the authorities cited by the author and which we think support the theory of the State that the proof supported the allegation of ownership made in the indictment are the following: Thomas v. State, 1 Texas Crim. App., 389; Bailey v. State, 18 Texas Crim. App., 426; Emmerson v. State,33 Tex. Crim. 89; Russell v. State, 55 Tex.Crim. Rep.; Livingston v. State, 38 Tex.Crim. Rep.; Garling v. State, 2 Texas Crim. App., 44; Clark v. State, 23 Texas Crim. App., 612; Odell v. State, 44 Tex.Crim. Rep.; Staha v. State,69 Tex. Crim. 356, 151 S.W. Rep., 543; Crouch v. State,52 Tex. Crim. 460.

The judgment of the lower court is affirmed.

Affirmed.

PRENDERGAST, JUDGE, absent.