Clements v. State , 43 Tex. Crim. 400 ( 1901 )

The judgment was affirmed at the Tyler term, 1901, and now comes before us on motion for rehearing. Appellant urgently insists that this case comes under the doctrine announced in the Dawson case (Texas Criminal Appeals), 61 Southwestern Reporter, 489, and that under the ruling in that case, this judgment should be reversed. His insistence is that there was no animal known in that community as an estray or the property of some unknown owner, and that no such animal was shown to have been missed.

In the original opinion in this case we endeavored to lay down what we understood was involved in the decision of the Dawson case. However, there are some expressions in that case which would indicate that, in the view of the court, the alleged stolen animal must prior to the theft be known as the property of some unknown owner, and identified as such. We do not believe that such expressions were necessary to the decision of that case; but, if they were, we do not understand that to be the law, and such expressions not in harmony with this opinion are hereby overruled. The statute relating to theft of property belonging to unknown owners is general in its terms, and comprehends the property of all unknown owners. White's Ann. Code Crim. Proc., art. 445; White's Ann. Penal Code, sec. 1483, subdiv. 3; Id., sec. 1507, subdiv. 2. Where an indictment alleges that property was stolen from an unknown owner, the unknown ownership must be proved as any other issue in the case. As was said in Dawson's case: "It is permissible, under our statute, for the grand jury to make diligent inquiry as to the true owner of cattle, and, not being able to find the owner after such inquiry, to allege in the indictment that said cattle were taken, being then and there the property of an owner unknown to the grand jury. But this does not absolve the State from proving that there were cattle belonging to an unknown owner, nor does it absolve the State from proving the usual and customary requisites, to wit: It must be proved that defendant took the animal; that the animal belonged to an unknown owner; that it was taken without the knowledge, will, or consent of said unknown owner, and with the intent to appropriate it to the use and benefit of the party so taking." Now, whether the animal was known in the community at the time as an estray or an animal belonging to some unknown owner, and this was the animal alleged to have been stolen, as was the condition in Melton's case (Texas Criminal Appeals), 56 Southwestern Reporter, 67, or whether the animal shown to have been stolen was not previously known in the community, or on some account the State was not able to identify the animal as the property of any person, would make no difference. In either event, the State not being able to identify the property as belonging to a known owner, it would be the property of an unknown owner, and would be covered by our statute authorizing the allegation that it was the property of an unknown owner.

The motion for rehearing is accordingly overruled.

Motion overruled.