Windom v. State , 44 Tex. Crim. 514 ( 1903 )

At a former day of this term the judgment herein was affirmed. It is now contended the court committed error in failing to apply the law to the issue of ownership, and that this is apparent of record, and fundamental in its nature, which would require a reversal. This might be answered by the decisions construing article 723, Code of Criminal Procedure, to the effect that it is too late to suggest such error for the first time on appeal. It should have been taken advantage of by bill of exceptions or in motion for new trial in the court below. But, independent of these decisions and of this article, we do not believe there is any merit in the question suggested. This matter comes in this way: The indictment alleged the ownership to be in Savie Richardson and John Richardson. The evidence discloses that there were two parties, father and son, by the name of Savie Richardson. The contention is that, where such is the case, the law would presume the ownership to be in the father, and not the son. If this be correct, it is but a presumption which could be overcome by proof. The word "Junior," or "Jr.," or words of similar import, are ordinarily mere matters of description, and form no part of a person's legal name, and to omit or add such appellation or cognomen is harmless error, both in civil and criminal proceeding. Geraghty v. State, 110 Ind. 103; Ross v. State, 116 Ind. 495; People v. Cook, 14 Barb., 259; Padgett v. Lawrence, 10 Paige, 170; Com. v. Perkins, 1 Pick., 388; Cobb v. Lucas, 15 Pick., 7; Cargill v. Taylor, 10 Mass. 203; State v. Grant, 22 Me. 171; Coit v. Starkweather, 8 Conn. 293; Fleet v. Youngs, 11 Wend., 522; Prentiss v. Blake, 34 Vt. 465; Keith v. Ware, 6 Vt. 680; Blake v. Tucker, 12 Vt. 39; Headley v. Shaw,39 Ill. 354; State v. Weare, 38 N.H. 314; Commonwealth v. Parmenter, 101 Mass. 211. In Simpson v. Dix, 131 Mass. 179, it was held that, where a conveyance is executed to the grantee of a certain name, and there are two persons, father and son, of that name, no presumption will be indulged that the conveyance is to the father, and evidence is admissible to show who in fact was intended as the grantee. The evidence in this case further shows that the father and son lived upon the same place; that the son lived with the father; that the horse was kept in the barn on the place, which is owned by the father. And it was further shown that the horse in question was in fact the property of the two sons, Savie and John Richardson, and that the father had no interest in the animal. Even had objection been urged upon the trial below, it would not have been well taken under the authorities cited.

The only remaining question urged on rehearing is the supposed insufficiency of the evidence. There were several theories advanced by appellant in reference to his taking the horse to ride away from the officers and escape further serving his time on the county farm in obedience to the judgment of the court punishing him for a misdemeanor. However, there is evidence refuting these theories, and showing a fraudulent taking. Under this state of facts or condition of the record, this court would not be authorized in disturbing the verdict.

The motion for rehearing is overruled.

Motion overruled.