Madison v. State , 1884 Tex. Crim. App. LEXIS 134 ( 1884 )

White, Presidihg Judge.

The appellant was convicted of the theft of certain hogs, the property of one Cabiness. Without discussing the many errors assigned, we propose to discuss but two questions, to wit: 1. As to the sufficiency of the facts to establish theft as defined in our Code; and 2, the sufficiency of the evidence to establish the guilt of the defendant.

A fraudulent “ taking” is the essential element of theft as that offense is defined in our Code. (Penal Code, Art. 724.) At common law, a carrying away or asportation was necessary in connection with a fraudulent taking, but under our Code, “to constitute theft, it is not necessary that the property be removed any distance from the place of taking; it is sufficient that it has been in the possession of the thief, though it may not be moved out of the presence of the person deprived of it; nor is it necessary that any definite length of time shall elapse between the taking and the discovery thereof; if but a moment elapse, the-offense is complete.” (Penal Code, Art. 726.)

What is a taking under our law? Must actual, manual possession, or the exercise of actual custody and control, be established to constitute a taking? These questions are suggested, and necessary to be determined from the facts in this case. It is shown by the evidence beyond controversy that the appellant sold the hogs to Grooms, and that the hogs belonged to Cabiness. The hogs were running in Grooms’s field, who, believing them to belong to defendant, informed the latter that they were in his field. “ Defendant said he thought they were his hogs; that he had hogs running in the same range.” Witness (Grooms) and defendant called the hogs right at (up to?) them.”, Defendant sold the hogs to Grooms, and Grooms, the next day, put them into his pen, where they were afterwards found, and claimed by Cabiness.

Was this such a “taking” by defendant as constitutes theft under our statute? At common law there was required to be not only a taking, but asportation also. And Mr. Russel^ says; “ There must be an actual taking or severance of the goods from the possession of the owner, on the ground that larceny includes a trespass. If, therefore, there was no trespass in taking goods, there can be no felony in carrying them away. But the taking need not be by the very hand of the party accused; so that if the thief fraudulently procure a person innocent of any felonious intent to take the goods for him (as if he should procure an infant within the age of discretion to steal the goods), his offense will be the same as if he had taken the goods himself, and it should be so charged. It appears to be well settled that the felony lies in the very first act of removing the property; and therefore that the least removing of the thing taken from the place where it was before, with an intent to steal it, is sufficient asportation, though it be not quite carried away.” (2 Russ, on Crimes, 9 ed., p. 152.)

In the case before us, the hogs were in their accustomed range, and Grooms, after his purchase, did not drive or pen them for a day or so. Did the single act of defendant in selling him the hogs, under the circumstances, amount to theft? At the request of the district attorney, the court charged the jury “that the selling of property belonging to another by one who knows the same is not his own is sufficient in law to constitute a taking as meant in the definition of theft; and if all the other ingredients of theft, as given you in the general charge, are proven, and a taking is shown by a sale of the property, then such sale is a talcing under the law.”

This charge simply affirms that a sale is equivalent to a taking.

In Hardeman v. The State, 12 Texas Court of Appeals, 207, Hardeman sold a steer running on the range, the property of one May, to one Wear, and this court said: “The evidence fails to show that the steer was ever in possession of the defendant. To constitute theft, there must be a fraudulent talcing by some per on. In this case, the defendant did not take the animal, nor did Calvin Wear, to whom defendant sold the animal; and, if Wear had taken the property, his taking would not have been fraudulent, but honest, he having bought and paid for it, and received the bill of sale for the steer. This steer, running on the range all the time, was not taken fraudulently or otherwise by any person, hence there was no theft.” This decision fully refutes the proposition announced in the charge given—that a sale alone constitutes a taking. Under the Hardeman decision, it would appear that a defendant must have some sort of possession of the stolen property, else a sale of such property by him would not amount to theft: and we are of opinion that this proposition is well sustained by authority and reason. There must be an actual .taking or conversion of the stolen property to support a verdict of guilty of theft. In White v. The State, 11 Texas, 771, the Supreme Court say that intention and conversion were both “necessary elements to make out a charge of theft. In all criminal cases nothing is presumed against the accused. The proof must show that there was a conversion, which under the Code is the synonym of taking.” (Martin v. The State, 44 Texas, 172.) In Martin’s case the proof was that the owner of the alleged stolen hog, while in his field, heard the report of a gun; advancing he saw, just over a hill, the defendant loading his gun, and on approaching the defendant he saw, about.fiftecn feet from where defendant was standing, one of his hogs freshly shot. He said to defendant: “That is my hog.” Defendant replied: “I did not shoot it.” It was held that actual conversion or possession was not shown, and that the intent and act constituting the offense must both exist to make out the offense.

In State v. Wilkerson, 72 North Carolina, 376: “ When A was ■ indicted for stealing a hog, and on the trial it was shown that a hog' belonging to the prosecutor had been killed and concealed in the corner of the fence, covered with leaves, and that A was seen at night to go to the place, and look carefully around and stoop over, as if to take the hog, and upon being hailed fled, held, that these facts alone would not justify a verdict of guilty.”

The case we are considering is not, it will be noticed, precisely similar to any of the other cases we have cited. In this case, though the hogs were in their accustomed range, yet they were . gentle and were called up by defendant or Grooms, and were right up at them, in their presence, and could have been immediately driven off by either or both when defendant made his ■ sale and constructive delivery of them to Grooms. Under these circumstances, had not the hogs been “taken,” in legal contemplation, by defendant before the sale? He called them up; this was exercising control over them certainly, and, after they came up, and whilst they were thus in his control, if he, knowing them not to be his property, sold and constructively delivered them to Grooms, who afterwards took them into actual possession, under the purchase, it would, in our opinion, bring the case fully within the rule quoted above from Russell, viz: that “if the thief fraudulently- procure a person innocent of any felonious intent to take the goods for him, his offense will be the same as if he had taken the goods himself.” The appropriation, so far as defendant is concerned, was obvious, and the taking did not rest solely upon the subsequent exercise of ownership and possession by Grooms.

But, as stated above, the charge given at the request of the district attorney was erroneous.

In addition to this error, we are not satisfied that such fraudulent intent is established by the evidence as warrants the conviction.

Appellant had hogs, which he had bought of Roberts, running in the same range. Grooms believed these to be defendant’s hogs. Defendant said that he also believed them to be his.' The marks, it is true, were somewhat different, but defendant is shown to be little acquainted with the difference in marks, . There was no concealment or attempt at concealment with regard to any part of the transaction by defendant. His actions are not inconsistent with honest and fair dealing, under an honest but mistaken claim of right to the hogs. He certainly promptly and fully righted the wrong, if any had been done, as far as could be by satisfying Cabiness and Grooms0in so far as they were likely to be injured by a loss of the hogs alleged to have been stolen.

In our opinion the evidence does not support the verdict and judgment, and in connection with our conclusions upon this point we cite the following cases: Mullins v. The State, 37 Texas, 337; McHenry v. The State, 40 Texas, 46; Clark v. The State, 7 Texas Court of Appeals, 57; Landin v. The State, 10 Texas Court of Appeals, 63; Shelton v. The State, 12 Texas Court of Appeals, 513; Taylor v. The State, Id., 489; Mapes v. The State, 14 Texas Court of Appeals, 129; Dresch v. The State, Id., 175. I

The judgment is reversed and the cause remanded.

Reversed and remanded*

Opinion delivered June 14, 1884.