Harrold v. State

81 S.W. 728, 46 Tex. Crim. 568, 1904 Tex. Crim. App. LEXIS 190

• Court: Court of Criminal Appeals of Texas
• Decided: June 8, 1904
• Docket: No. 2812.
• Status: Published

Opinions

BROOKS, Judge.

Appellant’s punishment was fixed at two years confinement in the penitentiary, under an indictment charging substantially, as follows: That C. H. McCarty, on September 22, 1903. * * * “having possession of two horses then and there the property of one John Gilbert, by virtue of his contract of hiring made with one Henry Walker, who was thereunto duly authorized by and acting for the said John Gilbert, as the agent and employe of the said John Gilbert, did then and there unlawfully and without the consent of said John Gilbert and Henry Walker, and without the consent of said John Gilbert and Henry Walker, and without the consent of either the said John Gilbert or Henry Walker, fraudulently convert said horses to his, the said C. H. McCarty’s own use, and with the intent to deprive the said John Gilbert, the owner, of the value of the same; and the aforesaid grand jurors further state upon théir oaths as aforesaid that on or about the above named day and date, in the county and State aforesaid, one Joe Harrold, before the commission of said offense of theft by said C. H. McCarty, as aforesaid, did then and there fraudulently advise, command and encourage the said C. H. McCarty to do and commit the said offense of theft, as aforesaid, he, the said Joe Harrold not being personally present when said offense was committed .by the said C. H. McCarty,” etc. Appellant moved to quash the indictment because it was not alleged therein that appellant was a party to the contract of hiring. We hold that it is not necessary to allege in the indictment that he was a party to the contract of hiring. The indict ment does allege that he advised and encouraged the principal McCarty to commit the offense. We accordingly hold the indictment is good.

Appellant insists that the court committed error in refusing his requested instruction number 3. The substance of this special charge is that if McCarty took the horses for the purposes of stealing a ride with them, but not with intention of appropriating them, appellant would not be guilty. This charge is correct; but the evidence in this case does not raise this issue. Furthermore, the court’s charge was sufficient to protect appellant’s rights, even conceding that issue is in the case, since the court instructed the jury, among other things, that before they could convict appellant they must find that McCarty was guilty of theft, and that he appropriated the horses in Parker County.

Appellant further insists that the court erred in not instructing the jury that they could not consider the statement of McCarty, made to Henry Walker at the time the contract of hiring was made, since said statements were made in the absence of appellant. It was not necessary to so limit this testimony, since the statement of the principal, McCarty, to the party from whom he hired the horses, was admissible as original evidence to show the guilt of McCarty, and the jury could not appropriate said testimony for any purpose except to show the guilt of McCarty.

Appellant strenuously insists that the evidence is insufficient to support the verdict. While the evidence is circumstantial, it is of that conclusive character leading on the whole to a satisfactory conclusion and irresistibly leading one to believe in appellant’s guilt,, to the exclusion of every reasonable hypothesis. The judgment is affirmed.

Affirmed.