Barnes v. State , 46 Tex. Crim. 513 ( 1904 )

DAVIDSON, Presiding Judge.

Convictidn for cattle theft. The indictment contained two counts, one charging theft by conversion; the other ordinary theft. Both were submitted to the jury. A general verdict was returned. Neither the verdict nor the judgment specified the count upon which the conviction and judgment rests. However, there is no evidence sustaining the count charging theft by conversion. The evidence shows that defendant and his son, a witness for the State, took up some cows-for the purpose of milking them. The cows belonged to the Matador Land and Cattle Company, whose property was under the control of Ligertwood. The mothers of three calves disappeared, or were driven away from where appellant-was milking them, leaving their three 'calves in his possession; that he continued in possession of the calves, feeding and taking care of them, until he finally traded them for a well-rope to be used with his boring machine. This is about the substance of the testimony in the case. Appellant appeared before the grand jury, and testified. The witness Gilmore, foreman of the grand jury, was introduced and reproduced appellant’s testimony before the grand jury substantially in the following language: “That he (Barnes) had permission from the Matador people to milk their cows, and that- he had been milking their cows for some time, that last spring he got up seven head of the Matador cows, and that when they had milked them for about six weeks, three of them disappeared, leaving their three calves on his hands without mothers; that he (Barnes) fed and took care of them until about the first or second of September following, when he (Barnes) traded them to Mr. Darby for a rope for his (Barnes’) well machine; that one of the calves was red and white spotted; the other two red with white faces; that they belonged to the Matadors, and their mothers were branded with a V on the right side and a V on the right hip; and that the Matador men came and branded the other calves in the pen; that he (Barnes) had no authority from the Matador people to sell or dispose of these three calves traded to Mr. Darby, and that he (Barnes) had not stated to any person he had taken in these three calves for work done in the southern part of the county; that he (Barnes) considered he ought to have the three calves for his trouble with them; that he had talked with Dr. Love about the matter, who advised him to the same effect. * * * Defendant was summoned to appear before the grand jury. Was asked if he wanted to make any statement; was then sworn and testified .willingly, and seemed anxious to tell all about the matter. Witness believed defendant would tell the same thing now, if placed on the witness stand. Dr. Love is a justice of the peace.” Lockett was also introduced as a witness. He was a member of the grand jury. His testimony is substantially the same as Gilmore’s. Young Barnes testified for the State that he was with bis father when he took up the cattle, and that he took them for the purpose of milking them.

Appellant contends that the court’s charge was erroneous wherein he informed the jury that cattle running in their accustomed range were in the possession of their owner, and that the evidence was not of sufficient cogency to show Ligertwood was the owner. We are of opinion there is nothing in these contentions. Ligertwood testifed that he was superintendent of the Matador Land and Cattle Company, and had charge and control of all of their interests in Texas, including the land and property of every sort, horses and cattle. These cows when taken by appellant were in one of the pastures of the Matador Land and Cattle Company, and in which appellant resided. Hnder this statement of the evidence Ligertwood was in as complete control of the property as the owners themselves could have been. There was no error in so charging the jury. The cattle were in their accustomed range, because they were in the pasture of their owners. Ligertwood was in charge of the pasture and the cattle, and for the purpose of this prosecution was the owner.

Exception was reserved to the following portion of the court’s charge: WThe State has introduced testimony to prove the confession of defendant made before the grand jury, and other confessions of • defendant, and you are charged that the law is that a defendant can not be convicted of a crime on his own confession alone; therefore, if you should find and believe defendant’s confessions so introduced in evidence shows the commission of the offense charged in the indictment, yet unless you find and believe from the evidence beyond a reasonable doubt that the State has corroborated said confession by other evidence, both as to the commission of the offense and the defendant’s connection therewith, and that all the evidence taken together proves to your satisfaction beyond a reasonable doubt every material allegation in the indictment, you will find defendant not guilty.” Exception was reserved to this charge on several grounds. This charge is on the weight of the testimony. It assumes that the statements made before the grand jury as well as other statements are confessions of guilt. Upon the same facts the judge instructed the jury in a previous section of the charge, if they believed the statement to be true, to acquit, because of a want of fraudulent intent at the time of" the original taking. So the court has in one section of the charge instructed an acquittal if the facts are found to be true; and in the other assumes a confession and requires a conviction. This left the jury in the dilemma from which they extricated themselves by using the statements and testimony as evidence of guilt and convicted appellant.

In regard to the corroboration of this confession, if they be treated as confessions, the State relied upon the testimony of the son, whose evidence shows that if the original talcing of the animal by his father was a fraudulent one, then the son was an accomplice; because he assisted, and if that attached, so as to make the father guilty at any stage of the possession of the animals, the son was equally guilty, because he assisted in the taking, in driving the cattle home, in milking the cows, and branding the calves when they were sold. But the court failed to instruct the jury that, under the facts and circumstances, if appellant was guilty of theft, the son would be an accomplice and would require the corroboration mentioned in the statute. For the errors indicated, the judgment is reversed and the cause remanded.

Reversed and remanded.