Shipp and Strickland v. State

35 S.W.2d 150, 117 Tex. Crim. 594, 1930 Tex. Crim. App. LEXIS 991

• Court: Court of Criminal Appeals of Texas
• Decided: December 17, 1930
• Docket: No. 13833.
• Status: Published

Opinions

MORROW, Presiding Judge.

— Hog theft is the offense; penalty, confinement in the penitentiary for a period of two years.

On the ranch of J. R. Strayhorn situated in Kent County he had some hogs which he owned. They were in the habit of going to a tank on an adjoining ranch. Testifying as a witness, Strayhorn said that he was the owner of the hogs, looked after them, fed them and took care of them. Teague, an employee of Strayhorn on the ranch, also fed the hogs. The appellants had caught and tied several of the hogs and were in the act of catching another when Strayhorn arrived. The appellants fled at the time and later fled the State.

There are three counts in the indictment. In one of them J. R. Strayhorn is named as the owner; in another Lee Teague is named as the owner; and in another it is charged that the hogs taken belonged to Strayhorn but were taken from the possession of Teague. The court instructed the jury on each of the counts. The jury rendered a general verdict of guilty as charged in the indictment. The appellants, by their testimony, advanced the theory that Joplin claimed the hogs and instructed Shipp to catch and tie them, and that Shipp informed Strickland that the hogs belonged to Joplin arid that instructions had been given Shipp to catch them, but this was denied by Joplin. Instructions were given the jury touching all of the defensive theories.

The suggestion that the verdict cannot stand for the reason that it is susceptible of the construction that the appellants were found guilty on each of the counts in the indictment is not deemed tenable. The court should have instructed the jury to designate the count in the indictment upon which their finding was based. If the verdict had assessed more than the minimum penalty, the failure of the court to give such an instruction might present a matter of some difficulty. There is no testimony qualifying that of Strayhorn touching the matter of ownership further than as embraced in his testimony above summarized. There is no evidence tending to show ownership in Teague, and there would be no basis for the assumption that the jury regarded Teague as the owner. Even if there were such testimony, however, the verdict fixing the lowest penalty allowed by law would negative any harmful effect from the action of the court in embracing the several counts in the charge and in failing to tell the jury to designate the count upon which the verdict rested. The case is unlike those of Knott v. State, 93 Texas Crim Rep., 239, 247 S. W., 520; Modica v. State, 94 Texas Crim. Rep., 403, 251 S. W., 1049, and Goldstone v. State, 114 Texas Crim. Rep., 442, 25 S. W. (2d) 852, in each of which cases the penalty assessed was in excess of the minimum. In this, as in the Guse case, 97 Texas Crim. Rep., 212, there was but one transaction, and the lowest penalty having been assessed, the court concludes that the procedure followed was harmless error.

The court has been favored with no brief for the appellant and has perceived no other matters requiring discussion.

The evidence is sufficient to support the conviction. No errors warranting a reversal having come to the attention of the court, the judgment is affirmed.

Affirmed.