Samora v. State

4 Tex. Ct. App. 508

• Court: Court of Appeals of Texas
• Decided: July 1, 1878
• Status: Published

Opinion

Winkler, J.

On the trial below, the defendants requested the court to charge the jury as follows:

“ That the burden of proof rests upon the State to prove the ownership of the horses as alleged in the indictment. Proof that the horses in this case belonged to Peck & Dixon would not sustain the allegation made in the indictment that they were the property of W. P. Dixon. The jury must believe from the evidence that the property was proven to be that of W. P. Dixon, as alleged in the indictment,, before they would be justified in convicting them of the-theft.”

The court refused to give this charge, and to the refusal the defendant took a bill of exceptions.

On this subject the court instructed the jury as follows r “ If the jury believe, from the evidence, that W. P. Dixon, the alleged owner of the gelding, was a part-owner of the-same, and had the exclusive control and possession of the-same, then the allegation of ownership in the indictment, will be sufficient to support a conviction.”

The indictment alleges the ownership of the gelding to-have been in W. P. Dixon.

The proof shows that the gelding was one of a number of" horses belonging to Peck & Dixon, and W. P. Dixon testified “that this gelding belonged to him and Peck, of Gonzales, Gonzales County, but that he had the exclusive possession and control of him ; that he did not give his consent to the taking of him, and that Peck had no authority to do so, or even to take him himself.” This testimony was not contradicted or questioned.

The question raised by the bill of exceptions has repeatedly been decided by the Supreme Court, and against the view taken by the appellants. As early as the case of Langford v. The State, 8 Texas, 115, Wheeler, J., said: “ The rule is that when one person has the general, and another a special, property in the thing, the property may be averred in the indictment to be in either.” Citing Whart. Cr. Law, 404.

In Moseley v. The State, 42 Texas, 78, the court says, Roberts, C. J., delivering the opinion : “ It is well established that property may be alleged in an indictment to belong to one who has a special property in it at the time it is stolen.” Citing Langford’s case, and 3 Greenl. on Ev., sec. 161.

In Henry v. The State, 45 Texas, 84, Ireland, J., delivering the opinion of the court, it was said: “By our Code (Pasc. Dig., art. 2381, and note) the ownership may be alleged in the one having the special, or the one having the general, property in the thing stolen, as the pleader may choose. * * * If A and B be joint owners, and the property not in possession and control of either, and the pleader should allege that A was owner, the variance would be fatal; but, if the ownership be in A and B, and B has actual possession and control, the pleader may allege that the property belonged to B.” This case is in point. See, also, Wilson v. The State, 3 Texas Ct. App. 206.

The court did not err in the charge given, nor in refusing that asked by the defendants.

We find no other matter of law requiring special notice. The various questions raised have received the attention their importance demands.

We are of opinion that the appellants have been fairly tried and convicted, upon a sufficiency of evidence, under proper instructions, and that the judgment be affirmed.

Affirmed.