Jones v. State

11 S.W. 830, 28 Tex. Ct. App. 42, 1889 Tex. Crim. App. LEXIS 122

Opinion

Willson, Judge.

This conviction is for the theft of a cow, and must be set aside because of a fundamental error in the charge of the court. The indictment alleges ownership of the cow in two persons jointly, to wit, Frank Paxton and C. C. McClure, and the jury are instructed in the charge as follows: “If from the evidence adduced in this case you are-satisfied beyond a reasonable doubt that * * * defendant unlawfully took one cow, * * * the property of Frank Paxton and C. C. McClure, without the consent of said Paxton and said McClure or of either of them,” etc. The words “or of either of them” should have been omitted, and the charge as to consent should have been “without the consent of Frank Paxton and without the consent of C. C. McClure,” etc. Woods v. The State, 26 Texas Ct. App., 490.

Other questions presented in the record are not considered, as they are not likely to arise on another trial. We will remark, however, that as presented in the statement of facts the evidence does not in our opinion warrant the conviction, but upon another trial sufficient proof of defendant's guilt may be adduced.

The judgment is reversed and the cause remanded.

Reversed and remanded.

Judges all present and concurring.