Doss v. State

White, Presiding Judge.

It is insisted that if it be admitted that the testimony of the State’s witnesses be true, still the evidence would not support the conviction in this case, because it does not show “a taking” of the alleged stolen animal by defendant. In other words, that the facts as stated by the witnesses do not show that defendant ever exercised such control over, or had such possession of the animal, as would constitute his acts a taking under the statute.

Briefly stated, the facts are that the appellant, some time in the summer, proposed to sell a cow and calf to the witness, Bob Hardy, for twelve dollars and fifty cents—seven dollars in cash, and the balance to be paid in the fall. Defendant and the two Hardys, father and son, went the next morning to look for the cow. They came to an open place or sort of prairie in the woods and found a red three year old cow, with a calf, which defendant pointed out as the one which he wished to sell. They rode around the cow, and, as the witness expresses it, “ crossed her out,”" and the witness, telling defendant he would take her, paid defendant six dollars, and, he says, defendant “ delivered me the cow and calf, and he, defendant, told me to take the cow, and I took her;” he, defendant, promising to make the bill of sale when the rest of the money was paid, in the fall. Defendant then told Hardy and his son to stay there with the cow, and he would look around and see if he could not find another one of his cows, and if he could find a better one he would come back and swap it for the one he had sold witness. Defendant then loped off and was never seen again by witness until just before the trial. After awaiting his return some time, Hardy and his son drove the cow and calf home. At the time and place defendant sold the cow to Hardy, there were other cattle near the cow, a short distance off in the timber; but though the parties rode around the cow, they did not drive her, and for aught that appears, she did not move out of her tracks during the time defendant was present, nor until she was driven off, after he had left, by Hardy and his son.

It is contended most strenuously that such facts do not constitute “a taking” by defendant, under our statute defining theft; that, in so far as he was concerned, the range possession of the owner was never disturbed by him, and that he had not exercised the slightest control over said animals of any kind whatsoever, much less having them in his manual possession, even though but for a single moment. In Madison v. the State, 16 Texas Court of Appeals, 436, where the defendant called up the bunch of hogs out of the field and then sold them to a party who actually took them in to possession under his purchase, this was held to be such a taking as would constitute theft on the part of Madison. Mr. Bishop announces the same doctrine. He says: “When the larceny is of a domestic animal, like a horse, the trespass is sufficient if the animal is ridden, driven or led away. And doubtless the same is true if it is toled away by food, or by the voice, so as to come under the control of the thief. * * * Suppose, a horse or a dog (or hog?) to be toled out of possession of the owner by corn, is not this as much a taking and carrying away as the shouldering of a bale of goods would be? I confess I can see no substantial legal difierence.” (2 Bish. Crim Law, 7 ed., sec. 806.)

In Coombes v. the State, 17 Texas Court of Appeals, 359, it was held that where the circumstances showed an intent to steal, the killing of the cow of another on the range, though the animal had never actually passed into the manual possession of the. slayer, is sufficient to show such a taking as will support a conviction for theft of the animal. “ Manual possession, actual handling, does not appear to be essential in case of animals, even in common law larceny” (2 Bish. Crim. Law, sec. 813, note 7; Hall v. The State, 44 Texas, 387); and if this is true at common law, where asportation was essential to the crime, a fortiori it should be the rule with us, where asportation is not necessary to constitute the offense. (Penal Code, Art. 726.)

In Madison’s case, supra, quoting from 2 Russell on Crimes, it was said: “ But the taking need not be by the very hand of the party accused, so that, if the thief fraudulently procure a person innocent of any felonious intent to take the goods for him (as if he should procure an infant, within the age of discretion, to steal the goods), his offense will be the same as if he had taken the goods himself, and it should be so charged.” This same doctrine is most clearly declared in our own statutes, with regard to “ principals in crime.” Article 77, of the Penal Code, reads: “ If any one, by employing a child, or other person who can not be punished, to commit an offense, or by any means, such as poison, etc., * * * or by any other indirect means, cause another to receive an injury to his person, or property, the offender, by the use of such indirect means, becomes the principal.” A party does not directly, in person, take A.’s horse, but he procures its theft by indirect means; that is, by selling said horse to one B., who is innocent of any knowledge of A.’s fraudulent intent; will it be contended that, under the statute quoted, A. is not a principal in the theft, though he never had manual or actual possession or control of said horse, or, though he was not even present at the time of the taking? We think not.

In the case under consideration, defendant did not take the animal himself, but, by selling it to Hardy, upon the pretense that it was his, he did procure Hardy, who was entirely innocent, and who believed defendant was the owner, to buy and take possession of the animal. This was certainly causing another to be deprived of his property by indirect means, and under circumstances which, in contemplation of the statute, would make him a principal in the theft.

Mr. Bishop says: “ One plain proposition is, that there can be no crime without a principal. There may be more principals than one, but there must be at least one. Therefore, a man whose sole will procures a criminal transaction, is principal, whatever physical agencies he employs, and whether he is present or absent when the thing is done.” (1 Bish. Crim. Law, 7 ed., sec. 649.) Again, he says: “ And because there must always be a principal, one is such who does the criminal thing through an innocent agent, though personally absent.” (Id., sec. 651.) “ The principle of the common law, quifacitper alium facitperse, is of universal application, both in criminal and civil cases.” (Id., note to sec. 673.)

If the State’s testimony in this case, as we have given it above, be true, then it is simply sufficient to establish against defendant “ a fraudulent taking,” such as is essential, under our statute, to constitute the crime of theft. The views above expressed in no wise conflict with the decision rendered by this court in Hardeman’s case, 12 Texas Court of Appeals, 207, in which case there was no “talcing” of any character by any one. The case of Lott v. The State, 20 Texas Court of Appeals, 230, states a different doctrine, and that case is hereby overruled.

Only one other question remains to be disposed of, and that is the action of the court in overruling defendant’s application for a continuance. The defense in the case was an alibi. Defendant claimed that he would prove by his absent witness, Emswiler, that he was not in Milam county until after the month of July, 1881. In view of the other testimony adduced at the trial, we can not say that the court erred in holding that the proposed evidence would probably be true, even if it had been so testified by Emswiler. Lovelace, a witness for the State, testified that during the month of July, 1881, he saw defendant twice in Milam county, and that at one of the times referred to the defendant asked witness to tell him who owned the identical cow and calf in controversy. Lovelace’s testimony as to the time is conclusively, in our opinion, corroborated by the evidence of Tabor and the two Hardys. We may conclude that there is a conflict in the testimony between the witnesses for the State and those for defendant; still, the question of the credibility of these witnesses was one for the jury to determine, and having determined it in favor of the State’s witnesses, we can not say that they have decided improperly, nor that the court erred in refusing a new trial on account of the proposed evidence of the absent witness, Emswiler.

Opinion delivered June 5, 1886.

We have found no reversible error in this record of conviction, and the judgment is affirmed.

Affirmed.