Yarbrough v. State , 107 Tex. Crim. 127 ( 1927 )

Appellant insists that we should hold under the facts that possession of the stolen animals was improperly alleged in the true owner Bobbitt. We have again reviewed the evidence and believe it to be fairly stated in our original opinion. Among other authorities to which we are referred by appellant as supporting his contention are Bailey v. State, 20 Tex. Crim. 68; Honea v. State, 56 Tex.Crim. Rep., 119 S.W. 851; Bonner v. State, 58 Tex.Crim. Rep., 125 S.W. 22; McKnight v. State, 70 Tex.Crim. Rep., 156 S.W. 1188. All of these cases were reviewed and the salient features thereof stated in Hartman v. State, 85 Tex.Crim. Rep., 213 S.W. 936, and in our judgment may be distinguished from the present case. We deem a further review of them unnecessary. Appellant also cites Warren v. State, 51 Tex.Crim. Rep., 106 S.W. 382; Rabe v. State, 85 Tex.Crim. Rep., 212 S.W. 502, and Bailey v. State, 50 Tex.Crim. Rep., 97 S.W. 694. After a close examination of these three authorities we are of opinion the facts recited therein do not furnish a parallel which would be controlling in this case. It may be conceded that the evidence raised the issue whether actual control, care and management of the stolen animals was in parties other than Bobbitt and this was recognized by the court and the issue correctly submitted to the jury, whose finding thereon was adverse to appellant. For us to adopt appellant's contention would in effect be to hold that the evidence wholly fails to support the jury's finding on the question of possession. This we feel unauthorized to do under the facts. There is no pretense that appellant took the cattle under the belief that he had a right to do so, nor by authority of anyone whom he claimed had the right to consent to his taking. This issue was not in the case as in some of those to which we have been referred.

Believing our former opinion properly decided the case, appellant's motion for rehearing is overruled.

Overruled.