Tankersley v. State

Appellant was convicted of theft of cattle, his punishment fixed at two years confinement in the penitentiary.

The substance of the testimony is that Joe Williams found a red-white-spotted yearling heifer branded either 5X or SX running in his pasture, the ownership of which was unknown to Williams. The yearling had been running in his pasture for sometime. On one occasion, Joe Williams pointed out said heifer to appellant, and asked appellant if he knew the owner of the animal. Appellant stated that he did not. A few days later, about October 9, 1905, appellant with Dolph Johnson came to the Williams' pasture to get some cattle Williams had sold appellant for Tom Polk, and while there Joe Williams asked appellant if he had learned the owner of the heifer. Dolph Johnson spoke up and claimed the right to take said heifer, and Williams claimed six months' pasturage for the same. Appellant gave Williams a check for $1.50 as pasturage on the heifer for six months, and appellant and Dolph Johnson drove the heifer off with the other cattle appellant had purchased from Joe Williams for Tom Polk. The heifer in question belonged to Dr. F. Keifer, who owned an adjoining pasture to Joe Williams. Dr. Keifer testified not only to the ownership of the animal in question, but that he placed said animal in his own pasture and that it got into the pasture of Joe Williams. Williams never claimed the animal at any time, and it seems that his possession was casual, incident to the fact that the heifer went through the division fence between the Keifer pasture and his pasture.

Appellant requested the court to give a charge, to this effect: "If the jury should find from the evidence that Joe Williams had possession of the cattle in question at the time the same was taken by defendant, if taken at all by defendant, and that Joe Williams was holding said cattle for pasturage, then and in that event, you will acquit defendant." Appellant also asked the following charge: "If you find from the evidence that Joe Williams had possession of the cattle in question at the time the same was taken by the defendant, if taken at all by the defendant, and that said Joe Williams was holding said cattle for pasturage, then and in that event you will acquit the defendant." The learned trial court in approving the bill of exceptions to his refusal to give said charge, adds this explanation: "There is no evidence that Joe Williams had the actual control and management of the animal." We do not think there is any error in the court's refusal to give these charges. If Williams had asserted any character of control or management of the animal, or if the same had been placed with said Williams in bailment, or if the said Williams had received said cattle from Keifer, the real owner, to pasture for him, it would have been well and proper to have alleged the ownership in the said Williams. But here we have prosecuting witness Keifer, who owned the animal, placing the same in his own pasture, and was seen there at various and sundry times, and the animal had slipped through the division fence and into the pasture of Williams. We do not believe this constitutes special ownership on Williams' part under the statute; and therefore, the court did not err in refusing the charges above set out. Denton v. State, 5 Texas Ct. Rep., 446; Willis v. State, 44 S.W. Rep., 826.

Appellant asked the court to give the following charge: "If you believe from the evidence in this case that defendant purchased the cattle alleged to have been stolen, or if you have a reasonable doubt as to whether he purchased said cattle, you will acquit the defendant." Neither appellant nor Dolph Johnson, from whom appellant insists in his proof, that he purchased the cattle, testified. Nor does the statement of facts show any facts authorizing this charge. It is true Polk testified that he paid a check for $15, signed by appellant as his agent, payable to Dolph Johnson, for work and one yearling. This check was given several days after the animal was taken. The evidence is undisputed that appellant took the animal, and that Dolph Johnson assisted him in the taking. The mere fact that subsequent to the taking, he gave Dolph Johnson a check for work and one yearling, not proven to be the animal in question, would not raise the issue of purchase.

Appellant's third complaint is that the court erred in refusing to permit appellant to introduce the check drawn by him in favor of C.L. Johnson, commonly known as Dolph Johnson, on the First National Bank of Roby, for $15, of date October 13, 1906, given in payment of one yearling and for work. This check would have been admissible as corroborative testimony of the fact that he had purchased the animal, if there had been any distinct positive evidence that he had done so. But the check is in no way identified as being the check for the animal in question.

The fourth complaint is that the court should have charged the jury: "If from the evidence you believe that Dolph Johnson claimed to have authority to handle the cattle in question from one Oat Osborn, and under said claim or authority, drove and shipped the said cattle with one Polk's cattle, or if you have a reasonable doubt as to whether said Johnson took and shipped said cattle in question, you will acquit the defendant." We do not think the evidence raised this issue. Appellant paid the pasturage to Williams for the yearling in question, claiming it for the party who had authorized him to take charge of the animal. The mere fact that Dolph Johnson was present and assisted in taking the animal away would not make appellant less guilty.

Appellant objects to the following portion of the charge: "Defendant in a criminal case is permitted by law to testify in his own behalf, but his failure to do so cannot be taken as a circumstance against him, and the jury must not discuss the question of his failure to testify when considering of your verdict." This charge has been repeatedly approved by this court and is the statute.

The last insistence of appellant is that the evidence is not sufficient to support the verdict. We cannot agree with this contention. The circumstances clearly show that appellant knew he was committing theft at the time of the taking. His subsequent acts in paying prosecuting witness for the animal corroborate this. Finding no error in the record, the judgment is affirmed.

Affirmed.

ON MOTION FOR REHEARING. April 10, 1907.