Rumbo v. State

White, Presiding Judge.

When the appellant procured the mare from Edmonson the second time it was with the understanding that he was going to return to Cooke County in order to sell the recipes for making soap. The question in the case was whether at the very time he so acquired possession of the mare his proposal to use her for such purpose was not a false pretext made by him in order to obtain possession of and steal her.

He acquired possession of the mare on the fifteenth day of October, 1883. By the law in force at that time unless he acquired the possession by means of a false pretext, or with intent at the Very time of obtaining the property of depriving the owner of the value thereof and appropriating the same to his own use and benefit, he would not be guilty of the theft of the same (Penal Code, art. 727; Willson’s Crim. Stats., sec. 1269), and no subsequent appropriation or conversion would or could relate back to the original taking so as to make it theft. The well settled rule of law on the fifteenth day of October, 1883, was that “where a horse was delivered on hire or loan, and such delivery was obtained bona fide, no subsequent wrongful conversion pending the contract would amount to a felony or make the ofíense larceny; and further, if one hired ahorse and sold it before a journey was performed, or sold it after, before it was returned, he would not commit theft in case the felonious intent came upon him subsequently to receiving it into his possession. Morrison v. The State, 17 Texas Ct. App., 34.

Our present statute changes this rule, but it was not adopted until March 8,1887 (Willson’s Crim. Stats., art. 742a; Gen. Laws 20 Leg., 14), and consequently can not and moreover could not be applied to this case as charged in the indictment. Taylor v. The State, 25 Texas Ct. App., 97; Brooks v. The State, 26 Texas Ct. App., 184.

The question then in the case was, did defendant intend to steal the mare when he obtained possession of her from Edmonson to go to Cooke County, or did this intention come upon and actuate him subsequently?

Defendant made an application for continuance for two witnesses by whom he proposed to prove that they saw him in possession of the mare in Ellis County some days after he had gotten her from Edmonson; that he was then on the direct road leading from Edmonson’s to Cooke County; that he told them the mare was Edmonson’s, and that he was riding her to Cooke County to sell recipes for making soap for Edmonson. This application for continuance was overruled by the court because sufficient diligence was not shown. Suppose this be conceded, the question then upon the motion for new trial would be, was the evidence admissible, was it material, and was it probably true? The Assistant Attorney-General contends that the evidence was inadmissible, because the declarations of defendant sought to be proved were self-serving. We do not think that under the facts developed they would fall in that category. We are of opinion that any act or word said or done by defendant relating to or explanatory of his possession of the mare on his route from Edmonson’s to Cooke County would be res gestœ and admissible evidence upon the question of intent. We are further of opinion that the evidence was material, might change the result of the trial, and was probably true—that is, that the witnesses would so testify, and that the testimony would be true as to the fact that they were told by defendant with regard to the mare just as is stated in the application for continuance.

In the light of the evidence adduced, we are of opinion the court should have granted the new trial on account of the testimony of th,ese absent witnesses. The judgment is reversed and the cause remanded.

Reversed and remanded.

Judges all present and concurring.