Shubert v. State

20 Tex. Ct. App. 320, 1886 Tex. Crim. App. LEXIS 53

• Court: Court of Appeals of Texas
• Decided: February 17, 1886
• Docket: No. 1938
• Status: Published

Opinion

Willson, Judge.

Defendant was indicted jointly with one Eisner. There are three counts in the indictment, to wit, the first charging that the defendants “did unlawfully, wilfully and fraudulently take into their possession and drive, use and remove from its accustomed range a certain horse, the same being the corporeal personal property of Phil. P. Cage, T. E. Cage and J. J. Cage, who compose the firm of Phil. P. Cage & Brothers, without the consent of the said owners or either of them, and with the fraudulent intent to deprive the said Phil. P. Cage, T. E. Cage and J. J. Cage thereof.” The second count charges, in the usual form, the theft of the same animal; and the third count charges that the defendants did unlawfully and fraudulently receive and conceal said animal, knowing that the same had been stolen. In each count the venue- of the offense is alleged in Travis county. Defendants severed and M. Schubert was placed upon trial first, and was convicted upon the first count in the indictment.

I. The exceptions to the indictment were properly overruled. It is not only permissible, but commendable, to insert in an indictment as many counts as will be necessary to provide for every possible contingency in the evidence. (Code Crim. Proc., art. 433; Gonzales v. The State, 12 Texas Ct. App., 657; Boles v. The State, 13 Texas Ct. App., 650.) Whilst the first count does not charge the offense defined in article 749 of the Penal Code in the precise words of that statute, in that it uses the word “deprive” instead of “defraud,” it is nevertheless alleged that the animal was fraitdulently taken, etc., and this is equivalent to the statutory language and sufficient. (Thompson v. The State, 16 Texas Ct. App., 74; Fowler v. The Slate, 38 Texas, 559; Willson’s Cr. Forms, No. 476, p. 207.)

II. As to the venue of the offense of which defendant has been convicted, it was properly alleged, and sufficiently proved to be, in Travis county. The offense is declared to be theft. (Penal Code, art. 749.) Theft may be prosecuted not only in the county where the property was taken, but in any county through or into which the thief may have carried the same. (Code Crim. Proc., art. 216.) This provision applies to all species of theft, and the learned trial judge did not err in his view of the law as to the venue of the offense. Although the accustomed range of the animal may have been in some other county than Travis, it was not necessary that the indictment should allege such other county in which such range was located, and it was competent to prove the range to be in any county, and the indictment alleging it to be in Travis county was supported by proof that the animal was taken from its range in another county and brought by the defendant into Travis county.

III. No exceptions were saved to the chargé of the court. In our opinion the charge is free from any material error. While the definition of the word “ wilful ” is not as full as it might properly have been, still we think, in the absence of any exception made thereto at the time of the trial, the definition as given is sufficient. (Owens v. The State, 19 Texas Ct. App., 242.)

IV. Three special charges were requested by the defendant, and were refused. The first, relating to the venue of the offense, was not correct in principle and was properly refused. The second, defining possession of property, and the third, concerning the explanation made by defendant of his possession of the animal when such possession was first challenged, might very properly, we think, have been given, but we cannot say that their refusal was fundamental error, or error which, under the facts of the case, was calculated to injure the rights of the defendant. If the action of the court refusing these two charges had been excepted to at the time of trial, and the exception reserved by bill filed in proper time, we would have reversed the judgment for this error. There are in the record several bills of exception, and among them are two covering these refused charges, but none of the bills were presented, approved and filed within ten days after the date of the conclusion of the trial, and cannot therefore be considered.

V. There remains but one question to be determined, and that is the sufficiency of the evidence to support the conviction. Whilst the evidence is entirely circumstantial, and in some respects not as cogent as it perhaps could have been made, we are not prepared to say that it is insufficient to support the verdict. It was sufficiently proved, we think, that the accustomed range of the animal was fifty miles distant from the place where she was found in the joint possession of defendant and Eisner. This range was near to the range of horses belonging to the defendants, and from Avhich vicinity defendants had gathered the animals composing their herd, in tvhich herd this animal was found after the arrival of the herd at Austin. There Avere also found in the same herd at Austin eight or nine other animals which did not belong to the defendants or either of them, two of Avhich animals were in the jleur de lis brand, and two animals in this brand were in Coxe’s pasture Avhen and where defendants’ herd were first inspected, said pasture being in Hays county. It v?as not shoAvn, however, that the two animals bearing said brand, and seen in said pasture, were the same animals of that brand found in defendants’ herd at Austin, nor was it shown that the range of animals in said brand was in Hays county, and that said range did not extend across the Colorado river and include the vicinity of Austin. But, leaving out of view the evidence as to the animals in the herd not inspected in Hays county and not claimed by defendants Avhen found in their herd, and looking alone to the Cage mare, the animal named in the indictment, we find said animal fifty miles distant from its accustomed range in another county, on the east side of the Colorado river, the opposite side of said river from its range, and in the herd of the defendants, and at a place where it is not to be presumed that horses usually run at large Avithout being known. We find, further, that the herd in which this animal was found was gathered by defendants partly in the same range in which this animal was accustomed to run and had run for years. We find, further, that defendants had their herd inspected in Hays county, near Iiyle, a railroad station and shipping place for stock, and in a pasture containing some fifty head of horses not embraced in the inspection. Ho reason appears why the herd was not shipped in the county of its inspection instead of being driven thirty-five or forty miles to another place of shipment.

[Opinion delivered February 17, 1886.]

Such being the evidence, we think it warrants the conclusion of the jury that the animal was removed from its accustomed range by the defendants, wilfully and with intent to defraud. As to the defendants’ explanation of their possession of the animal, it was the province of the jury to determine, first, whether it was a reasonable one, and, second, whether, if reasonable, it was not disproved by the evidence in the case. There was testimony on the part of the defense proving the truth of such explanation, but the jury were the judges of the credibility of this testimony, and their verdict shows that they did not give it any credence. The evidence in behalf of the State, we think, justified the jury in regarding the explanation-as unreasonable and improbable, and a fabrication.

Impressed as we have been by a careful consideration of the evidence as it is presented in the record, we must hold that it sustains the conviction. The judgment is affirmed.

Affirmed.