Williams v. State , 27 Tex. Ct. App. 258 ( 1889 )

Willson, Judge.

This is a conviction under article 797 of the Penal Code. Instead of alleging in the language of the statute that the defendant did “remove” the property out of the State, the indictment alleges that he did “run” it out of the State. The word “run” in the connection in which it is used in the indictment is, we think, equivalent to the statutory word “remove,” and we therefore hold that the use of “run” instead of “remove” does not render the indictment bad. (Willson’s Cr. Stat., sec. 1955.) In all respects we hold the first count in the indictment, the count upon which the conviction was had, to be sufficient.

It appears from the evidence that the mortgage upon the horse in question was executed in Kaufman county, and that defendant had possession of the horse in said county. He removed said horse from said county, going in the direction of Louisiana. When he reached Harrison county, and was in one mile of the boundary line between Texas and Louisiana, he was arrested by quarantine authorities and while being held in custody by said authorities he escaped, taking said horse with him into the State of Louisiana.

It is contended by counsel for defendant that the venue of the offense is in Harrison and not Kaufman county. There is no provision of statute specifically declaring the venue of this offense. In Roberson v. The State, 3 Texas Court of Appeals, 502. where the prosecution was for selling mortgaged property, it was held that the venue of such offense was in the county where the sale was made, irrespective of where the lien upon it was executed, or where the property was removed from. That decision, however, is not applicable to the question before us.

There is a general provision of our Code as follows: “In all cases except those enumerated in previous articles of this chapter, the proper county i or the prosecution of offenses is that in which the offense was committed.” (Code Crim. Proc., art. 225.) But this article does not apply in this case, because the offense can not be said to have been committed—that is completed—in any county in this State. It was not an offense to remove the horse from Kaufman to Harrison, or any other county in this State. No offense was committed until the horse had been removed out of this State.

This offense is one which we think comes within the meaning of article 305 of the Code of Criminal Procedure, which reads: “Prosecutions for offenses committed wholly or in part without, and made punishable by law within this State, may be commenced and carried on in any county in wlfiTh the offender is found.” This offense is one which can not be committed wholly within this State, but must be committed partly without this State, because the property must be removed out of the State before the offense is complete. There is no more rea son for holding that the offense was committed in Harrison than in Kaufman county. It was not a.nd could not be committed wholly within this State, and but for the article of the code last cited, could not be prosecuted in any county in this State. It was certainly not the intention of the Legislature to denounce an offense over which the courts of this State could not exercise jurisdiction. We do not think we are giving article 305, above cited, a strained or unreasonable construction in making it applicable to this case. On the contrary, we think the plain meaning of that article embraces this particular offense, as well as others of a similar character, where there is no special provision controlling. We hold, therefore, that this prosecution was properly commenced and maintained in Kaufman county.

Opinion delivered February 20, 1889.

As to the evidence, we think it sustains the conviction. The issue of fraudulent intent was fairly and fully submitted to the jury by the charge of the court, and the jury were well warranted by the evidence in concluding that such intent on the part of defendant existed and accompanied the act of the defendant in removing the horse out of this State.

We find no error in the conviction, and the judgment is affirmed.

Affirmed.