DocketNumber: No. 14792.
Citation Numbers: 53 S.W.2d 57, 122 Tex. Crim. 28
Judges: MORROW, PRESIDING JUDGE. —
Filed Date: 6/8/1932
Status: Precedential
Modified Date: 1/13/2023
The offense is theft of sheep; the punishment, confinement in the penitentiary for two years.
Roy Chick testified that on December 14, 1930, he owned 52 head of sheep; that on December 15 following he counted his sheep and found four of them missing; that about four days after he missed his four sheep he found them at the place of business of Max Hahn Packing Company; that he identified his sheep from general appearance, size and marks; that he lived about three miles from the pasture in which he kept the *Page 29 sheep, and was in the pasture "around the sheep nearly every day." J. D. DeFries testified in part, on direct-examination, as follows: "I am acquainted with some sheep that he (Roy Chick) owned back in December. On the 14th of December we owned 50 ewes and two bucks — 52 all told. I counted them on the 14th; in fact, I made a habit of counting them about every three days. On the following Monday Roy counted them, I didn't. I was ploughing. I was with Mr. Chick when he got his sheep back. I was able to identify three of them positively as being the same sheep, that I knew myself."
On cross-examination the witness DeFries testified, in part, as follows: "Yes, sir, I worked for Mr. Chick. I am working his farm. I had charge of the stock. I was there on the pasture — on the farm that I was working. Mr. Chick was not living there. He lived in town, in Richardson, about two and one-half miles away. I was taking care of the sheep for him. * * * The sheep were turned over to me for attention and care. My duties with reference to taking care of the sheep were I got a third of them for taking care of them. And they were turned over to me on the 8th of December. There were 52 head turned over to me at that time."
Max Hahn, who owned the Max Hahn Packing Company, testified that he bought the sheep in question from appellant on the 15th of December, 1930. Appellant offered no testimony.
Appellant raises the question of variance between the allegation as to possession and ownership in the indictment and the proof. The allegation in the indictment is that the sheep were taken from the possession of Roy Chick. Appellant maintains that the proof shows that the sheep were taken from the possession of J. D. DeFries. He not only raises the question of variance as to testimony, but contends that the court should have instructed the jury, in effect, that, if they believed the animals were taken from the possession of DeFries and not Chick, to acquit him. The opinion is expressed that the proof showed that the sheep belonged to Roy Chick; that DeFries was his tenant and the animals were kept on the place and were looked after by DeFries; that the owner, Roy Chick, also looked after the sheep. Roy Chick lived two and one-half miles or three miles from his farm, and, according to his testimony, went to the pasture nearly every day and saw his sheep. There was nothing in the testimony of DeFries to negative joint possession of himself and Roy Chick. Article 402, C. C. P., reads, in part, as follows: "Where one person owns the property, and another person has the possession of the same, the ownership *Page 30 thereof may be alleged to be in either. Where property is owned in common, or jointly, by two or more persons, the ownership may be alleged to be in all or either of them."
In Bailey v. State, 50 Tex.Crim. Rep.,
In Hartman v. State, 85 Tex.Crim. Rep., *Page 31
We are constrained to overrule appellant's contention that there is a variance. Further, the opinion is expressed that the court properly refused to give appellant's requested charge on the subject of variance.
The judgment is affirmed.
Affirmed.
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.