Putty v. State , 126 Tex. Crim. 268 ( 1932 )

Conviction for theft of hogs; punishment, two years in the penitentiary.

Appellant went to the home of a former tenant of his, who will be called herein P, found him and his wife absent, and took away with him two hogs, for the theft of which he stand convicted. According to appellant's own testimony P owed him and had gotten a part of certain rent corn which had been put in a crib; that on a day mentioned he and P had measured the corn, and P then said he had gotten some of the corn; that the next day appellant went over to the house of P, found him not at home, loaded the two hogs in his wagon, told P's daughter to tell her father he had the hogs, and was going to hold them until P had a settlement with him. Appellant admitted that up to the time of this trial he had had no such settlement with P, and still had the hogs. Mrs. P testified that the hogs belonged to her, were her separate property, — but P testified that he gave his wife money out of the crop with which she bought said hogs. We think this cuts no figure here.

The trial court very definitely and plainly submitted to the jury in his charge the issue that appellant's guilt depended on his intent in taking the hogs. He charged as follows: "Although you may believe from the evidence in this case, beyond a reasonable doubt, that the defendant took the two hogs as alleged in the indictment, yet if you further believe from the evidence that at the time he took them, he did not intend to steal them, but only took them in order to bring about a settlement with R. H. Purdom and himself, and without any intention of permanently appropriating the hogs to his own use and benefit, then he would not be guilty of the theft of the same, and you will so find; or, if you have a reasonable doubt thereof, then you will give the defendant the benefit of such doubt, and find him not guilty." We believe this embraced every pertinent phase of the law applicable which appears in appellant's special charges two to six inclusive. It submitted the affirmative defensive theory, and applied thereto, in a manner favorable to appellant, the doctrine of reasonable doubt. Appellant cites many authorities in his able brief. Smart v. State, 32 S.W.2d 197, was reversed for the refusal of a charge like that given in the instant case. This is true of Carroll v. State,25 S.W.2d 345, and of most of the cases collated by Mr. Branch in section 2470 of his Annotated Penal Code. In Young v. State,34 Tex. Crim. 290, a similar charge was given and said case was affirmed. In Barton v. State, 88 Tex.Crim. Rep., we said that whether the use of force in obtaining money from another was in good faith or as a pretext to cover fraudulent intent, — was a question for the jury. We have no right to substitute our judgment for that of the jury on any question of fact, or proper inference from facts.

There can be no question of the harmful consequences to society which might easily flow from such acts as those of appellant in this case. He was demanding a settlement from a former tenant, which might include corn, money, labor or property of various kinds, etc. In such case he took property which he found at the tenant's home, and, — if we understand him, — intends to keep it until by such means he can compel the tenant to make a settlement with him. He kept it from the time of taking on January 6th, 1932, to that of this trial on January 27, 1932. He may still have it. In Dunn v. State,34 Tex. Crim. 257, where the claim was that the purpose of the taking was to get a reward for the return of a horse, we said: "It appears that the purpose here was not for a temporary use, but to hold the property itself until he should be paid for its restoration to the owner." It appearing that the issue was properly submitted in that case, the judgment was affirmed. The holding has been upheld. In Plemons v. State,44 Tex. Crim. 555, the facts showed that the accused signed his brother-in-law's name to a check without authority so to do, claiming that he had no intent to injure and defraud inasmuch as said party owed him and he thought by this means he could collect what was due. We held that this was no defense, differentiating the principle involved from that governing in theft cases only on the ground that in theft the intent was to injure the owner, but in forgery, — to injure the public. We are unable to bring ourselves to believe the evidence in this case wholly insufficient, and see nothing in the special charges except in an effort by different verbiage to present what was already in the main charge.

Finding no error in the record, the judgment will be affirmed.

Affirmed.

ON MOTION FOR REHEARING.