Trimble v. State , 33 Tex. Crim. 397 ( 1894 )

DAVIDSON, Judge.

Appellant’s contention, that “in order to constitute the accused a principal in the crime of theft, it devolves upon the State to establish his complicity in the original taking,” is a correct enunciation of the law. This complicity may be shown by circumstances, and should be proved by the best attainable evidence. If, in pursuance of an agreement or conspiracy, or in furtherance of the common design, the appellant was to build the pen in which to place tbe stolen bogs, and did build it, and bis confederates were to go after tbe bogs and drive them to said pen, and did so, then be would be a principal. Smith v. The State, 21. Tesas Crim. App., 107.

Tbe bogs were placed in tbe pen built by appellant, and afterwards broke out and escaped. If they entirely escaped from tbe control of tbeir captors, in law they would, in that event, be in tbe possession of tbeir owner again. In such state of case a second taking would be a fresh larceny, and tbe taker could be punished therefor. Tbe charge of the court correctly states this phase of tbe law. There was no request by appellant to require tbe State to elect upon which taking the conviction would be asked. Tbe evidence as to tbe extent of tbe escape of tbe bogs is not as definite as it might have been; yet such escape was shown, and not denied by appellant. Appellant built tbe first pen in tbe cattle pasture of R. C. Spinks, as was also tbe second pen. After tbe second pen was constructed, appellant and Bayne went after and brought back tbe bogs and put them in tbe pen, and they and Stewart killed them tbe following night. This pasture was fenced by three wires, tbe lower one being from two to three feet above the ground. This would afford no bar to tbe escape of the bogs therefrom; but, as a matter of fact, they did not go out of tbe pasture, and were still in there when driven to tbe second pen. We are of opinion this evidence was sufficient predicate for tbe charge given in regard to a second taking.

In addition to other inculpatory facts, one witness testified to appellant’s confession of guilt on the examining trial. This confession was, in a qualified manner, contradicted by tbe justice who tried tbe cause. The State’s witness was positive as to the confession, whereas tbe justice was very doubtful on this point.'

We are of tbe opinion tbe evidence supports tbe conviction, and tbe judgment is affirmed.

Affirmed.

Judges all present and concurring.