Jarrott v. State

Appellant again contends in a vigorous motion for rehearing that the court erred, particularly in its opinion that there was proof of lack of consent of the owner of the car or that same was ever in law out of the possession of its owner.

We have again carefully reviewed the authorities, which confirms us in the opinion that the original disposition of this case was correct. The rule with reference to consent in cases of this character has been stated as follows:

"But where the criminal design originates with the accused, and the owner or his agent or servant does not suggest the design nor actively urge the commission of the crime, the mere fact that the owner, suspecting the accused, in person or through his servant or agent exposes the property, neglects to protect it, or furnishes facilities for the execution of the criminal design, under the expectation that the accused will take the property or avail himself of the facilities furnished, will not amount in law to a consent, although the agent or servant, by the instructions of the owner, appears to co-operate in the execution of the crime." 17 Rawle C. L. 50.

This rule is supported by many cases, among them being Sanchez v. State, 48 Tex.Crim. Rep.. The Sanchez case is also authority for the previous holding that Voss was not an accomplice.

It seems plain that an owner may be personally present with his property and yet its possession be in a thief within the legal meaning of the term possession. The question is whether the thief physically and actually possesses it, not whether at a moment's notice the owner is in a position to repossess himself of it. In this case Voss, in driving the car, was in such capacity acting as appellant's agent and the two actually had physical possession and control of it, though the owner was secretly present.

Appellant's motion is overruled.

Overruled.

The foregoing opinion of the Commission of Appeals has been examined by the Judges of the Court of Criminal Appeals and approved by the Court.