Bird v. State , 16 Tex. Ct. App. 528 ( 1884 )

Willson, Judge.

1, Sam. McCassling, the alleged owner of the animal charged to have been stolen, was as well known by that name as by his true name, Sam. McOasland, and there was therefore no fatal variance between the name of the owner as alleged and the evidence of ownership. (Code Crim. Proc., Art. 425; Rye v. The State, 8 Texas Ct. App., 163; Cotton v. The State, 4 Texas, 260; Hart v. The State, 38 Texas, 382; Bell v. The State, 25 Texas, 574; Wells v. The State, 4 Texas Ct. App., 20.)

2. If property taken under such circumstances as to constitute theft be voluntarily returned within a reasonable time, and before any prosecution is commenced therefor, the offense is a misdemeanor, punishable by fine not exceeding one thousand dollars. (Penal Code, Art. 738.) A return of stolen property, influenced by a threat of prosecution for the theft, is not a voluntary return within the meaning of the statute. (Owen v. The State, 44 Texas, 248.) Where a defendant had driven a stolen cow about thirty miles, and was overtaken in possession of the animal, and told that he must return her to her range, and he drove her about ten miles back in the direction of where he had taken her from, and there left her, it was held that this was not a voluntary return within the meaning of the statute. (Brill v. The State, 1 Texas Ct. App., 572.) In Grant v. The State, 2 Texas Court of Appeals, 163, this court said, referring to this provision of the Code, that “It never contemplated that a thief, caught in possession of property stolen by him, could reduce a felony to a misdemeanor by simply then offering to give up the stolen property or pay for it.” In that case the defendant was caught while he was in the act of skinning a hog he had stolen, and he then offered to return it to the owner or pay for it. In Moore v. The State, 8 Texas Court of Appeals, 496, this court, in discussing this subject, said: “To entitle the thief to the mitigated penalty for a voluntary return of the stolen property within a reasonable time, the return must be actual, and demonstrating in itself a contrition for the act, and not a clandestine return and constructive redelivery of the property. The purpose of the statute is to extend the grace and favor of the .law to such wrong doers as promptly repent of their acts, and endeavor to make all the reparation in their power to the party injured. In such cases the law looks with mercy upon the penitent, and administers a modified punishment for its infraction. But when the thief fails in his purpose to realize from the stolen property, and, as in this case, releases the stolen animal, which, of its own motions, returns to its accustomed range, the law delivers the prisoner over to justice, who sits blindfolded and inexorable, and sternly metes out the punishment affixed for the original transgression.” In Allen v. The State, 12 Texas Court of Appeals, 190, this court, in again treating upon this subject, said: “If the return is caused by fear that discovery has been made, and a prosecution will be set on foot, would it be voluntary? Are the causes and motives inducing the return to govern? If so, of what character or quality must they be? Suppose fear of detection and punishment is the moving cause. Does it follow that the return is not voluntary? Admitting that it does, suppose' that repentance and a desire for reparation, together with fear of detection and punishment, all contribute the acting causes prompting the defendant to return the property, will he not be entitled to this generous provision of our Code?” It was held in that case that if the return of the property was actuated by repentance, in connection with a fear of prosecution and punishment, it was nevertheless a voluntary return within the meaning of the law.

We deduce from the decisions upon this question, and from the statute itself, that a voluntary return of stolen property, within the meaning of the Article of the Code cited, must be under the following circumstances:

1. It must be voluntary, that is, willingly made; not made under the influence of compulsion, threats or fear of punishment. If, however, it be made under the influence of repentance for the crime, and with a desire to make reparation to the injured owner, it will be voluntary, although, it may also be influ- . enced by fear of punishment.

2. It must be made within a reasonable time after the theft, and before prosecution for the theft has been commenced.

3. It must be an actual, and not merely a constructive, return of the property into the possession of the owner.

4. The property returned must be the identical property, unchanged, and all of it, that was stolen.

In this case, defendant drove the animal from its range a distance of about ten miles, and, while endeavoring to sell it, was discovered by some persons who were acquainted with it, and thereupon defendant was told by the man to whom he was negotiating its sale to turn it loose, and they would get it again at some other time. Defendant turned the animal loose. In a few days thereafter, McCasland, the owner of the animal, told the defendant that all he wanted was the animal, and that if he, defendant, would drive it back .iome, he would not prosecute him. Soon after this, the anima* was found by McCasland in its accustomed range.

We are of the opinion that, under the peculiar ■ facts of this case, the court should have submitted to the jury the issue as to a voluntary return of the ammai oy the defendant. We think there was evidence sufficient to demand instructions from the court upon this issue. If aerendant aic*, in fact, return the animal within a reasonable time, and in such manner as to satisfy the owner thereof, and in accordance with the owner’s directions, and if, in so doing, defendant was actuated by a feeling of penitence for his wrongful act, and a uesire „o make reparation therefor, we thins ne would ne within the oenign operation « of this merciful provision oi our Code. While such return would not be strictly im¡o the actual possession of the owner, still, if it was such a return as the owner desired, and as he was satisfied with, we think it should be held sufficient. The learned judge did not charge upon this issue, nor did the defendant request him to do so, or except to the charge because of such omission; but the matter was called to the attention of the court in a motion for a new trial. We think a charge upon this issue was a part of the law of this case, and that the failure to give it was such error as was calculated to injure tne rights of the defendant, and is therefore reversible error.

We are also of the opinion that the court should have granted defendant a new trial upon the ground of newly discovered evidence. The evidence set out in the affidavits accompanying the motion was material to show that defendant’s confession, which had been admitted in evidence against him on the trial, had been made under the influence of promises and persuasion, and therefore was not admissible. We think it was sufficiently shown that this evidence had been discovered since the trial, and that its not having been discovered sooner was not attributable to any want' of diligence on the part of defendant. We think, also, that this evidence would probably change the result of the verdict on another trial. It would, perhaps, have the effect to exclude from the evidence the confession of the defendant, and should it have this effect there is no other inculpatory evidence against the defendant, so far as is disclosed by the record, except that of the witness Bryant, who was, unquestionably to our minds, an accomplice in the theft, and whose testimony is without corroboration, except by defendant’s confession.

It appears from this record that defendant is a boy of tender years, about sixteen years of age, and that in the commission of this theft he was aided by another person, and also acted under the instructions of the witness Bryant, who was carrying on the butchering business, and to whom he had taken the animal to be used by Bryant as a beef, and for which Bryant had promised to pay the boy twelve dollars and fifty cents. It seems that this man Bryant has been permitted, in consideration perhaps of his own escape from just punishment, to testify against this boy, and thus destroy evidence which would perhaps cause him, instead of the defendant, to oe incarcerated in the penitentiary for this crime.

Because of the errors we have mentioned, and because we believe that justice demands that the defendant should have another trial, the judgment is reversed and the cause is remanded.

Reversed and remanded.

Opinion delivered June 14, 1884.