Black v. State , 121 Tex. Crim. 574 ( 1932 )

In the motion for rehearing the appellant contends that the announcement in the original opinion is in conflict with that in the case of Miller v. State, 88 Tex.Crim. Rep.,225 S.W. 262. A synopsis of the Miller decision is as follows: Miller was charged with the theft of a number of joints of casing. In the indictment H. B. Lamb was named as the owner. Lamb was the superintendent of production for the Magnolia Petroleum Company, which company owned the property which was stolen. The property was on the farm where the Fowler Farm Oil Company was drilling an oil well, which also belonged to the Magnolia Petroleum Company. Lamb lived at the town of Burkburnett. The drilling operation for the Fowler Farm Oil Company was not at Burkburnett, but was some distance in the country on a farm, where Mr. Enloe was the "boss" or foreman and had possession of the property. Lamb had no personal connection with the particular oil lease or the property stolen. Enloe was also an employee of the Magnolia Petroleum Company. The stolen casing was secondhand, and was upon the ground in connection with the boring of the oil well. The decision in the Miller case that under the circumstances Enloe should have been named as the owner is in accord with what this court understands to be the law of this state as interpreted in the opinion of Presiding Judge White in Frazier's case, 18 Texas App., 434 (see page 442). It may be stated that, if there had been no one in actual possession of the casing which was alleged to have been stolen by Miller, it is conceived that the facts would have justified a conviction upon the averment that Lamb was the owner of the property. The facts, however, demonstrate that Lamb was not in possession of the property but that Enloe was in possession of it. The propriety of naming Enloe as the owner is not regarded as open to question. See Frazier v. State, supra; also Branch's Ann. Tex. P. C., sec. 2447, in which the following is stated: "If the employe, servant, or person in charge of the property at the time of the taking had more than the mere custody thereof and had the actual control, care and management of the property at that time not under the immediate supervision of the general owner, possession must be alleged in such employe, servant or person having such possession."

If there be doubt as to the soundness of the opinion in the Miller case, it grows out of the holding that the facts did not justify the conclusion that the ownership might have been alleged in either Lamb or in Enloe under the authority of article 402, C. C. P., 1925. See, also, Branch's Ann. Tex. P. C., sec. 2434. It is thought, however, that under all the circumstances, the Miller case was properly decided. See Henshaw v. State, 118 Tex.Crim. Rep., 39 S.W.2d 624; Lockett v. State, 59 Tex.Crim. Rep., 129 S.W. 627.

In our opinion, the facts in the present appeal bring it definitely within the purview of the statute mentioned, authorizing the averment of ownership to be alleged in either Smith or Myrtle Richardson. See Bailey v. State, 50 Tex. Crim. 398,97 S.W. 694; Duncan v. State, 49 Tex. Crim. 150,91 S.W. 572; Coates v. State, 31 Tex.Crim. Rep.,20 S.W. 585. See Branch's Ann. Tex. P. C., sec. 2434, subds. 5 and 6 and cases cited. The testimony upon which this conclusion is based, as found in the record, is as follows: Mrs. Myrtle Richardson testified that she was an employee of the W. B. McClurkan Company store and had charge of the ladies' ready-to-wear. From her testimony we quote: "I have charge of the ladies' department, myself personally, but I have other helpers. * * * No one had my consent to take that dress out of the store. * * * I work under Mr. Marvin Smith, who is the manager and head man. * * * I had charge of the department myself; I buy everything (that) is bought; I am in charge of it. Mr. Smith is my superior officer. It is his store. I am the one that the ladies in the department work under. I have complete charge and control of that department, buying and selling."

The testimony of Marvin Smith is in substance as follows: He was connected with the W. B. McClurkan Company Department Store as manager. He lived at Wichita Falls, where the store was situated. There was a sale advertised and extra help was employed. He was in charge of the store during that particular period. He had custody and control of the store and everything in it. Referring to one of the dresses that had been taken from the store, he said: "No one had my consent to take that dress."

Both Smith and Myrtle Richardson were possessors of the property within the meaning of the statute. It is thought that under the existing circumstances, the law would sanction the allegation of ownership in either or both of them. The following precedents are deemed in point: Reasoner v. State, 117 Tex.Crim. Rep., 36 S.W.2d 163; Wicklund et. al. v. State, 119 Tex.Crim. Rep., 44 S.W.2d 696.

The motion for rehearing is overruled.

Overruled.