Harrold v. State , 46 Tex. Crim. 568 ( 1904 )

DAVIDSON, Presiding Judge

(Dissenting).—I can not agree with the conclusion of my brethren affirming the judgment. The indictment charges and the jury convicted appellant as an accomplice to the theft committed by McCarty. McCarty was tried and convicted, and this indictment charges him with the theft by conversion after obtaining the property under a contract of hiring. It was framed and conviction obtained upon the theory that Harrold was an accomplice to McCarty, in that he advised him to obtain the property subsequently converted' by a contract of hiring, from the alleged owner. Article 877, Penal Code, proceeds upon the theory and provides for the punishment only in case where the property is obtained upon a contract of hiring and borrowing, and where the fraudulent intent and conversion occurs and is carried out after obtaining the goods or property. If appellant advised McCarty before McCarty obtained the horses and buggy from the livery stable to obtain them under a contract of hiring for the purpose of a subsequent appropriation, the offense would not come within the purview of article 877, because the agreement between them to obtain the property would be in pursuance of a fraudulent intent formed in the minds of both before the contract of hiring was made, and with, the view that the contract was to be made for the express purpose of getting possession of the property and appropriating it. This character of case is not covered by article 877, because it only provides a. punishment for the conversion of the property where this conversion and the fraudulent intent and purpose was formed subsequent to obtaining the goods. In terms the allegations in the indictment brings the case, if truthfully stated, strictly and literally within the general definition of theft, and more especially within the express terms of article 861, Penal Code, which provides that “the taking must be wrongful, so that if the property came into possession of the person accused of theft by lawful means, the subsequent appropriation of it is not theft; but if the taking, though originally lawful, was obtained by any false pretext, or with intent to deprive the owner of the value thereof and appropriate the property to the use and benefit of the person taking, and the same is so appropriated, the offense of theft is complete.” Taking these two statutes together, it wtil be discovered that, under article 877, Penal Code, the taking need not be wrongful; in fact that article is based upon the proposition that the original taking is not wrongful, but that the property comes within the possession of the taker by the use of lawful means—a contract of hiring for instance, and then subsequently is appropriated. That article denounces the punishment of theft, that is, it provides a punishment for the theft of property by conversion after the property comes into the possession of the taker by lawful means. Article 861 provides that under that character of case there can be no punishment, but if the goods was obtained by false pretext, or the intent to deprive the owner of the value thereof, then the theft is complete. The difference being that, under article 861 the unlawful or fraudulent intent must exist at the time of taking the property or securing its possession, while under article 877, the intent to fraudulently appropriate it must be conceived after possession lawfully obtained. The indictment charges an agreement between the-parties; at least advice of appellant to McCarty to obtain the goods by false pretext with the existing intent to appropriate it at the time the property is taken. If appellant advised McCarty, before the contract of hiring was made, to make the contract for the purpose of securing property to appropriate it, then he would come within the terms of article 861, and could not possibly be convicted under article 877. The allegations of the indictment preclude the offense under article 877, if they are true; and for the purpose of a demurrer they are taken to be true. My brethren, in order to sustain this indictment, have held that an agreement between McCarty and Harrold in advance of securing the property would authorize a conviction under article 877. From this conclusion I most respectfully dissent. I am of opinion that the allegations of the indictment show most positively that the provisions of article 877 do not apply to the ease set out in the indictment. The other questions in the case under the view I take would also require a reversal of the judgment, for those matters were injected into the case by the State and permitted by the court upon the theory that the agreement to steal the horses and subsequent appropriation of them came within the terms of article 877. This is not a case where the party hiring the horses formed the subsequent intent to appropriate that property, being thereunto advised by an accomplice after obtaining it. If appellant, after McCarty had obtained the property, had advised him to appropriate it, he would be an accomplice to the theft, if he was not being present at the time of the conversion. If he had advised McCarty, after McCarty was in possession, to appropriate the property and was present at the conversion he would be a principal. But all this must have occurred after McCarty had obtained possession of the property by virtue of the contract of hiring. It could not precede obtaining possession of the property under article 877. This case should have been reversed and the prosecution dismissed.