Heaton v. State

87 S.W.2d 256, 129 Tex. Crim. 365, 1935 Tex. Crim. App. LEXIS 475

• Court: Court of Criminal Appeals of Texas
• Decided: January 30, 1935
• Docket: No. 17096.
• Status: Published

Opinions

LATTIMORE, Judge.

Conviction for theft of a hog; punishment, two years in the penitentiary.

The accusation was theft of a hog. In the indictment ownership, etc., of said hog was laid in Irene Ruff. Mrs. Ruff was a married woman living with her husband on a 1600 acre ranch. Mr. Ruff was not at his house when the hog was taken, but was somewhere out on the ranch.

Mrs. Ruff testified that she saw appellant carry the alleged stolen pig from where it was shot and put it in a car which she had met ten or fifteen minutes before that, and in which were appellant and one Jess Walker. She saw three of her pigs rooting by the road near a fence on her property just before she met appellant and Walker. She and her husband went the next morning to where she had seen appellant carying the pig, and inside their fence was blood and brains, and on the fence blood and black hog hair, and a trail of blood led to where the car stood. Jess Walker testified that he was with appellant when appellant shot the pig, and that they later divided same. This witness was treated as an accomplice. The testimony is sufficient to support the judgment.

In various ways appellant raises the propriety of the averment of ownership in Mrs. Ruff. He asserted that Mrs. Ruff being a married woman, living with her husband on the ranch at the time, it should have been alleged that Mr. Ruff was the owner of the hog. Also that the proof showed theft, if at all, of community property, in which case a conviction could not stand where the indictment charged ownership in the wife. Our State’s Attorney takes the position that the proof in this case fails to show that the hog was community property, but most strongly supports the conclusion that it was the separate property of - the wife, — and that in any event all the testimony shows a special ownership in her, in that she had the exclusive care,-control -and management of said hog at the time it was taken.

Mrs. Ruff testified: “I had fourteen head of hogs, I had fed them that morning in the pen * * * I saw three of these pigs down by the fence * * * They were' on my property. *' * * He (appellant) was sarrying a pig from the fence- and putting it in the car. * * * I saw the defendant raise up the back lid of his car, — it was a coupe, — and put the pig in there. * * * That night when I fed the hogs I counted them and I only had thirteen. * * * That was my hog. * * * I owned the mother of the pig. The mother of the pig was not raised on oúr ranch but the pig itself was. * * * I missed the pig on the night of the 15th. I fed the pigs that night and there were only thirteen there. * - * * The mother of this pig that was taken is my hog. She belonged- to me.”

Mr. Ruff .testified: “My wife owned some hogs out there. On the 15th of June I was not at the house but was out in the pasture. I got back to the house about five o’clock in that afternoon.” No questions were asked this witness on cross-examination.

Walker, the accomplice witness who was with appellant when the latter shot the pig in question, got same and put it in the car, and later skinned it and divided with witness,— testified for the State. He said that appellant, while they had the pig in the car, told Fritz Wilheim that he had killed one of old lady Ruff’s shoats; also that when they got to the home of witness, appellant there told the wife of witness that it was old lady Ruff’s hog. Witness admitted hauling the hog in his car after appellant told him that it belonged to “Old Lady Ruff.” Mr. Highsmith testified that he recalled the incident wherein Mrs. Ruff was supposed to have lost a hog.

We have set out all the testimony appearing in this record shedding light on the question of ownership of the alleged stolen hog.

Art. 402, C. C. P., lays down statutory rules in reference to how ownership should be alleged in an indictment. There is no direction regarding such allegation in case the ownership be in the community composed of the husband and wife, further than the inference arising from the statutory statement therein that when 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. It is also said that where property belongs to an estate, ownership may be alleged in the administrator, executor or in any one of the heirs. It is also provided that ownership of the separate” property of a wife may be alleged to be in her or in her husband. When we look to our laws defining theft, we note that Art. 1414, P. C., provides that possession may be in one person and ownership in another,"and possession is defined in Art. 1415, id., as having the actual care, control and management of the property at the time same is taken.

Mrs. Ruff testified positively that the pig stolen was her property, and she so stated again and again. Mr. Ruff also so testified. In a case such as this, where we are not called on to decide the issue of ownership in a contest between rival claimants for the property, and in which no defensive theory rests on a claim that the accused took the property relying on gift or purchase from the husband, there seems little room for controversy as to what we should hold. Whether Mrs. Ruff’s separate ownership of the pig in question came about by gift from or agreement with her husband, — which under all the authorities could make it separate property, (see Arp v. State, 70 S. W. (2d) 997), was not developed in the record, and hence is not before us; but the fact remains that both Mrs. Ruff and her husband swore that the pig was hers. But one slight circumstance appears in testimony supporting appellant’s contention that said pig was community property. This was Mrs. Ruff’s statement that the mother of the pig was not raised on their ranch, but the pig was. We note that Mrs. Ruff does not say that she owned the mother of the pig before the pig was born; nor does she state when, how or in what manner both mother and pig became her property; nor did appellant see fit to go into such inquiry either of Mr. or Mrs. Ruff, both of whom were witnesses. If it was satisfactory to appellant to rest the question of ownership on the testimony of each and both of these people to the effect that the pig was Mrs. Ruff’s property, it must be satisfactory to this court, as it appeared to be to the trial court. The averment of ownership in Mrs. Ruff was met by the proof, and is sufficient.

In Arp’s case, supra, the alleged stolen property was a calf, the increase of a cow, which was the separate property of Mrs. Arp. Inquiry developed that there was an agreement between Mr. and Mrs. Arp that all increase of the separate property of the wife should' also be her separate property. This we held sufficient to support a conviction where the allegation was that the property taken was the separate property of the wife. In the record before us it is not shown that the sow, the mother of the pig, was the property of Mrs. Ruff before said pig was born, and both sow and pig could have become hers by gift, and since both Mr. and Mrs. Ruff swore that the pig was hers, and such fact was not disputed, — this seems to fully satisfy the law of averment of ownership in the wife in a case of theft of separate property of the wife. The proposition of being separate property of the wife is further strengthened by what Mrs. Ruff said as set out in our discussion of bill of exceptions No. 2, infra.

Appellant’s bill of exceptions No. 1 is qualified by the statement of the trial court who says that the testimony does not show that the property in question was community property, but on the contrary shows it to be the separate property of the wife. On this same point, in considering bill of exceptions No. 2, we note when Mrs. Ruff was asked the question as to whom this hog belonged, — after some wrangling between counsel,' the question finally propounded was “Was this hog your property or was it yours and your husband’s?” to which witness' replied: “No, sir, it was mine.” Another question was asked as follows: “It was your hog?” Witness answered “Yes sir.” We can not agree with appellant that any of his bills of exception, — all of which revolve around and bear upon the proposition we have been discussing, — reflect error.

We deem it not necessary to go into the other proposition advanced by the State’s Attorney, viz: that in any event the care, control and management of the pig in question was shown to be in Mrs. Ruff at the time it was taken.

Finding no error in the record, the judgment will be affirmed.

Affirmed.