Garcia v. State , 273 S.W. 860 ( 1925 )

MORROW, P. J.

The conviction is for theft of cattle; punishment fixed at confinement in the penitentiary for a period of two years.

It is charged in the indictment that the appellants “did then and there unlawfully and fraudulently take one head of cattle belonging to Guadalupe Quintanilla.”

Against the indictment, it is urged that the ommission of the term “corporeal personal property” renders the indictment fundamentally insufficient. In the statute defining “theft,” it is said:

“ ‘Theft’ is the fraudulent taking of corporeal personal property belonging to another from his possession.” Article 1329, P. C.

In the same title and chapter it is said:

“The term ‘property,’ * * * includes * * * every article commonly known as and called personal property, * * * provided such property possesses any ascertainable value.” Article 1337, P. C.

In article 1338, P. C., it is said:

“Within the meaning of ‘personal property’ which may b'e the subject of theft, are included all domesticated animals and birds, when they are proved to be of any specific value.’.’

In article 1354, P. C., it is said:

“If any person shall steal any cattle or hog, he shall be punished by confinement in the state penitentiary not less than two nor more than for years.”

In the case of Hendricks v. State (Tex. Cr. App.) 56 S. W. 55, while meagerly reported, apparently the same point was made and decided against the appellant’s contention. In that case, the court said:

“An attack was made on the indictment in the motion for new trial because it does not allege that the animal was the ‘corporeal’ personal property. It is not necessary to so allege.”

In our opinion, the language used in the indictment in the instant case is equivalent to that used in the statute.

Against the sufficiency of the evidence, it is urged that the ownership was not sufficiently proved. The state’s witness found where a steer had been killed and butchered. The hide, neck, and' feet were found near by. Circumstances pointed to the presence of two persons at the slaughter. Tracks were followed to the home of Tomas Garcia, where he was found “cutting up the meat.” The hide of the dead animal was examined by Quintanilla, who said: “The dead animal that we found was mine. It had my brand on it.”

Fabian Fonseca, one of the appellants, testified that he killed the animal, believing it to belong to Tomas Garcia, that his uncle, Tomas Garcia, had sent him for an animal, and that he killed the steer in question, believing it to belong to bis uncle. After killing tbe animal, be was told by Garcia that they would take it and settle with Quintanilla, tbe owner. It was picked up and brought to tbe borne of Garcia. On tbe trial, Garcia testified:

“I have beard tbe testimony of Guadalupe Quintanilla with respect to the animal that was killed. Fabian was the one that shot it. I sent him to kill it. I told him that I had two animals in Guadalupe Quintanilla’s herd, and to kill one of them.”

Tbe state’s theory, supported by circumstances, was that tbe . animal bad been slaughtered by both at tbe place where tbe bide was found. Tbe contention that tbe, proof of ownership was inadequate we think cannot be sustained.

There was no complaint of tbe rulings of tbe court preserved by bills of exception.

Tbe judgment is affirmed.