Roberts v. State , 64 Tex. Crim. 135 ( 1911 )

This conviction was for cattle theft. The State's evidence is to the effect that appellant killed an animal belonging to the alleged owner, Robinson. Robinson was used as a witness, and his testimony was supported by other witnesses to the effect that the animal did belong to him. Appellant's evidence is equally strong, to the effect that the animal belonged to a man by the name of McCullough. The witnesses for the State identified the animal as Robinson's, while those for appellant as positively identified the animal as McCullough's. All of the evidence in regard to marks on the animal shows that Robinson's animal had a swallow fork in the right ear and underslope in the left. All the witnesses who knew McCullough's animal testified that the animal was marked with a crop in the right ear and underslope in the left. Robinson testified since the trouble came up he had recorded his mark. The evidence shows for the appellant that one of the witnesses — not the appellant — named Roberts, marked McCullough's animal in his, Roberts' mark, on account of the fact that McCullough did not have a recorded mark, and that the mark that he placed upon McCullough's animal had been used by him, Roberts, all his life, and in addition, it seems to have been a sort of inherited family mark for cattle. McCullough had a few cattle that he used for milk purposes in the city of Houston, but was not a cattle man except in that manner. In fact, his work was building houses and work of that character around the city. Witnesses showed great familiarity with the animal, both as the property of McCullough and as the property of Robinson.

Appellant did not own the animal, but McCullough owned it. He knew the animal. McCullough authorized him to drive the animal up. He found some difficulty in doing so, and so informed McCullough. McCullough then authorized him to kill the animal, which appellant did. The animal was killed something like three or four hundred feet from and in plain view of the public road known as the Washington County road, which all the witnesses say was a thoroughfare and traveled by a great many people, and it may be stated that it was the public road leading from Houston to Washington County, and it is shown to have been a macadamized or shell road leading from the city of Houston. The animal was killed in the open prairie in broad daylight, and there was a party with appellant when he shot it, who assisted in butchering it. One or more parties came to where the animal was killed while the butchering was in progress. The matter was there discussed. Appellant placed the meat and hide, etc., in his cart, or delivery wagon and started into Houston. One or more of the parties who were aware of the killing and butchering notified Robinson. Robinson met appellant going down one of the main streets in the suburbs of Houston and a colloquy ensued. The hide was taken out, stretched on the ground and investigated and marks examined. When Robinson mentioned the matter, appellant stated that the animal did not belong to him, that it belonged to McCullough, and that he had killed it under authority from McCullough. Robinson testified, as did all the other witnesses, that there was nothing secret about the matter in any way; that appellant did not undertake to conceal the property, but frankly told him how he got it, and why he took it, and from the beginning to the end of the transaction there is nothing to indicate that appellant was trying to secrete the property or that he took it otherwise than as McCullough's animal. In fact, all the evidence shows that the taking was as public as it possibly could be, and that appellant claimed the property to be that of McCullough, with McCullough's authority to kill it. McCullough so testified. This was not even controverted.

In a civil transaction, the evidence would have been sufficient to have justified the jury in returning a verdict for either McCullough or Robinson. The testimony was quite positive on both sides; about as much so as the witnesses could testify. It is nowhere controverted or sought to be controverted that appellant had authority from McCullough to kill his animal. There is no evidence but what appellant believed at the time he was killing the animal that he was killing McCullough's animal. These matters are not controverted, as I understand this record.

Under this state of facts I am of opinion that the evidence does not support the conviction. There must be a fraudulent taking in order to constitute theft. It has been decided that where the property is taken under claim of right, and if the taker appears to have had any fair color of title or right to take, or if the title under such circumstances be brought into doubt, the court should direct an acquittal. Harris v. State, 17 Texas Crim. App., 177; Evans v. State, 15 Texas Crim. App., 31; Smith v. State,42 Tex. 444; Boyd v. State, 18 Texas Crim. App., 339.

It has been held also in the decisions of this court that where the taking is open and under claim of right, the question of title should be settled in the civil suit and not in a prosecution for theft. Young v. State, 47 Tex.Crim. Rep.; Seymour v. State, 12 Texas Crim. App., 391; Owens v. State, 21 Texas Crim. App., 579; Parks v. State, 29 Texas Crim. App., 597; McGown v. State, 27 Texas Crim. App., 183; Brokaw v. State, 85 S.W. Rep., 801. The facts do not show a case of theft because there is utter absence of fraudulent intent.

I might mention cases where the facts are even stronger for the State than shown by this record in which the judgment was reversed and remanded for want of sufficient evidence, if deemed necessary. However, I will cite the cases of Frugar v. State, 63 S.W. Rep., 130; Green v. State, 27 Texas Crim. App., 570; Tarin v. State, 19 Texas Crim. App., 359; Brooks v. State, 8 Texas Crim. App., 341, 27 S.W. Rep., 1079.

Error is assigned on the court's charge, or rather in an omission from the charge in regard to the explanation given by defendant of his possession of the alleged stolen animal and why he slaughtered it. The principal point of attack on the charge in this respect is found in the fact the court failed to instruct the jury that the State, having put in evidence exculpatory statements of the defendant, is bound by the same, unless such statements and explanations are disproved. Under our authorities and in any clear sense of justice this proposition is well taken. The State put in evidence appellant's statements in regard to the taking of the animal. These statements were to the effect that he was authorized by McCullough to kill the animal. McCullough claimed the animal and sustained his claim to it by quite a lot of testimony. He also swore he authorized appellant to slaughter it. The State put in the exculpatory statements and was therefore bound by the statements unless they were disproved. Pharr v. State, 7 Texas Crim. App., 472; Combs v. State, 52 Tex. Crim. 613; Pratt v. State, 53 Tex.Crim. Rep.; Jones v. State, 29 Texas Crim. App., 20; Pratt v. State, 50 Tex. Crim. 227. This is a sufficient number of cases to sustain the proposition announced. This charge was not given by the court and proper exception was reserved in the motion for new trial for such failure on the part of the court. I therefore, for two reasons, enter my earnest protest against the affirmance: First, that the facts do not show any fraudulent intent, conceding the animal to be Robinson's and not McCullough's; second, the failure of the court to submit a charge to the jury instructing them that if where the State puts in exculpatory statements of the accused it is necessary for the State, or prosecution to disprove those exculpatory statements; otherwise, the accused is entitled to an acquittal. I am fully persuaded this judgment ought to be reversed on both propositions. I, therefore, dissent.

ON REHEARING. December 6, 1911.