Buchanan v. State , 26 Tex. Ct. App. 52 ( 1888 )

White, Presiding Judge.

On the trial the State’s witness Sam Moore testified that about a year before the trial, he, witness, got the alleged stolen steer out of Lee’s pasture and put him in Miles’s pasture; that defendant was with him and helped him to drive and put the steer in Miles’s pasture. He does not say that defendant knew that the steer was not his, the witness’s, property, and that, so knowing, he aided him to take and steal it. On the contrary, he says that defendant asked him where the steer came from, and he told him the steer came from the Big Lake country and belonged to a Mexican.

It appears from this testimony that, if the steer was then stolen, it was stolen by Moore, and that defendant was ignorant of Moore’s fraudulent intent. In this aspect of the case, the court should, in substance, have instructed the jury that if the taking was by Moore, and defendant helped Moore, and participated in the taking and driving without knowing Moore’s fraudulent intent, then any subsequent fraudulent participancy in the disposition of the animal, or wrongful connection with it after it had been stolen by Moore, would not constitute theft on his part. “ To inculpate a defendant as a principal offender in the crime of theft, the State must show he had some connection with or complicity in the taking of the property. It does not suffice to prove that, subsequently to the taking, and without complicity therein, but with knowledge that the property had been stolen, he aided the taker to dispose of it,” or disposed of it himself fraudulently. (Boyd v. The State, 24 Texas Ct. App., 570, and authorities cited.)

Opinion delivered June 27, 1888.

Again, the court erred in refusing to permit the defendant to introduce in evidence his bill of sale for the animal from Jesus Gonzales, the Mexican. The witness, Lyell, testified that defendant and a Mexican came to his place of business, and defendant, in the presence of the Mexican, requested him to witness the bill of sale, which he did. This was some time in August last. Lyell did not know the Mexican, and the Mexican said nothing. But, as we have seen, Moore had previously told defendant that the animal belonged to a Mexican, and it was some months after this bill of sale was witnessed by Lyell before defendant sold the animal to Woodie and executed his bill of sale, which was dated the third day of November, 1887.

As to the defendant’s guilty participancy in the original taking of the animal from the alleged owner, Byrd, we are of opinion the evidence is insufficient, as is also the charge of the court upon that phase of the case, and we are further of opinion the court erred in refusing to admit in evidence defendant’s bill of sale from the Mexican, Gonzales.

The judgment is reversed and the cause remanded.

Reversed and remanded.