Ballow v. State

Appellant was convicted of hog theft, and given two years in the penitentiary. Appellant was indicted in Wichita County. The indictment contained four counts; but the trial and conviction was under the first count, which charged appellant with the theft of ten hogs, the property of M.W. Boger, etc. Appellant assigns a number of errors, but, inasmuch as the case will have to be reversed, we will only consider such as will likely arise on another trial.

The court should have rejected the evidence introduced by the State, as presented in the fifth assignment of error, relating to the prosecutor, Boger, procuring certain meat from the place kept by witness George Strickland about April 1, 1900. This meat was not identified as any of the stolen property, and appellant was not present, and what was done there, as far as he was concerned, was res inter alios acta. Cannada v. State, 29 Texas Crim. App., 537; Clay v. State, 40 Tex.Crim. Rep.. And the same remarks apply to appellant's seventh assignment of error, regarding the introduction of the ham brought into court by witness Boger.

We also believe the court should have admitted the testimony regarding the conversation between defendant and Mrs. Sallie Wilson, in the latter part of December, 1899, had in the presence of Harry Wilson. Defendant's testimony was attacked, and the State made it appear that his explanation and testimony given was a recent fabrication. In such case the authorities authorize it to be shown that he made the same statement before there was any motive to fabricate. Bailey v. State, 9 Texas Crim. App., 98; Dicker v. State (Texas Crim. App.), 32 S.W. Rep., 541, and authorities there cited.

It does not occur to us that the admission, over appellant's objection of the testimony of the witness Campbell, introduced by the State, as to what he would have done if he had found hogs of Wicker's in the river bottom in Clay County, Texas, in the fall of 1899, was correct. We fail to see the bearing of this character of testimony upon any issue in the case.

Appellant complains of the action of the court refusing to give his special requested charges numbers 10 and 13. Both of these charges are to the effect that if the jury believe said hogs were taken under circumstances to constitute same theft in Clay County, and were killed, and their carcasses carried into Wichita County, appellant should be acquitted. Instead of giving said charges, the court gave the general charge on the subject of the theft of hogs, to the effect that, if the jury believed appellant fraudulently took said ten hogs from the possession of Boger, etc., in Clay County, Texas, and that he carried said property from Clay County into Wichita County, to find defendant guilty as charged in the first count of the indictment. This was, in effect, to instruct the jury that it was immaterial whether the hogs were alive or dead when carried into Wichita County. This, in our opinion, raises the most important question in the case. We have examined the record evidence in the transcript, and that testimony strongly supports, if it does not establish, defendant's theory, to the effect that the hogs were taken alive in Clay County, and there killed by being knocked in the head, and then carried into Wichita County. Appellant's contention is that article 235, Code of Criminal Procedure, relating to the venue, where property is stolen in one county and carried by the thief into another county, requires that the same property, and in the condition when stolen, must be carried by the thief into said other county before that county has jurisdiction, and, as a corollary to this, that the indictment charged the theft of live hogs, and that the live hogs must have been carried into the county of the prosecution before a conviction could be sustained in such county. On the other hand, the State insists that hogs are equally hogs, whether alive or dead, and that the statute is merely one of venue, and should be construed liberally, and that the taking of a live hog in one county, and there killing it and carrying the dead carcass into another county, is carrying the same property into said other county, and is in compliance with the statute authorizing venue in such county. It is not a new question in this State that, where an indictment alleges the theft of an animal as a hog, a horse, or a cow, or cattle, it refers to such animal in the live state. Thompson v. State,30 Tex. 356; Horseman v. State, 43 Tex. 353 [43 Tex. 353]. And in accord with this doctrine are the decisions of other States. See Hunt v. State, 55 Ala. 138; Commonwealth v. Beaman, 74 Mass. 497. Now, if the indictment charges only theft of live hogs, and live hogs were taken in Clay County, and were there killed, and not live hogs, but the carcasses or pork of said live hogs, were taken into Wichita County, it would seem to follow as a logical conclusion that not the same property, but a different character of property, was carried into the latter county. The animal had undergone a transformation from its original state when taken. Life, which may have given it a peculiar value, was extinct, and it was not the same hog as when in the pen or range in Clay County. If the venue, under such circumstances, could be maintained under our statute, it would not matter how many steps had been taken in the transformation; for if Wichita County would have jurisdiction where the pork was carried into it from Clay County, it would equally have jurisdiction if the same hog had been made into bacon and lard, and carried into said county, provided all the lard and bacon which formerly constituted the hog were carried into Wichita County. To reach this conclusion it does not matter whether we regard the common law fiction that the carrying of stolen property into another county is a distinct offense in the latter county, and that the completed offense must be shown in the county where the prosecution is had, as seems to be the doctrine of some of our authorities (see Roth v. State, 10 Texas Crim. App., 27; Dixon v. State, 15 Texas Crim. App., 480; Gage v. State, 22 Texas Crim. App., 123) or whether the matter is simply one of venue, controlled by our statute (as see Harrington v. State, 31 Texas Crim. App., 577). The result, in either event, is the same; that is, the identical property stolen must be carried into the county of the prosecution before a conviction can be sustained there. Otherwise, where raw material is taken in one county, and is there manufactured into some other kind of property, and thence carried into another county, a prosecution would be authorized under our statute in the latter county. Such we understand to be the object and purpose of our statute, which, in the opinion of the writer, is merely one to give venue in certain counties where property is stolen in one county and carried into another, and has no relation to the rule at common law, and does not require the common law to enable us to construe it, as it is plain and unambiguous in its terms, and it was entirely competent for the Legislature to give venue, as was done, regardless of the rule at common law. We accordingly hold that the requested charges on this subject should have been given. If it appeared, without controversy, that live hogs were taken in Clay County, and they were there killed, and their carcasses taken into Wichita County, it was the duty of the court to instruct the jury to acquit appellant. The judgment is reversed and the cause remanded.

Reversed and remanded.