Carnes v. State , 134 Tex. Crim. 8 ( 1938 )

Appellant's motion for a rehearing claims that although the testimony might have shown a prior formed conspiracy, in which Russell Howell, the owner of the alleged stolen cattle was not interested, that on account of the fact that for some unknown reason, at the first attempt to steal these cattle, there was a failure to carry out their purpose, and the fact that another and further effort which was successful, and which Mr. Howell was aware of, would be in effect the giving of Mr. Howell's consent to the taking of such cattle, and therefore such taking would not be unlawful. We can not agree to such contention. The mere fact that a failure was had on the first attempt to get such cattle would not of necessity mean an abandonment of such purpose, and its continuation would not mean a new conspiracy, so it seems to us, but only a new date possibly for the carrying out of such conspiracy.

Mr. Howell had been informed by one of the conspirators that certain parties had conspired to steal his cattle, and such person agreed to let Mr. Howell know when they expected to carry out such agreement. He merely told the informer to let him know when the attempt to get the cattle was to be made. He did not enter into the conspiracy, nor give his consent to the taking. He testified:

"I did not give Percy Carnes my consent, or I did not give Albert Godwin or anyone my permission or consent to take those five head of cattle. They were my cattle."

Appellant again quotes Speiden v. State, 3 Texas Crim. App. 156. We quote from Johnson v. State, 3 Texas Crim. App. 590: "The facts in that case [Speiden v. State] show that the defendant had entered the bank at the solicitation of a detective rightfully in possession with the consent of the owner." Not so in this case. No one had Mr. Howell's consent to take his cattle.

The appellant again urges the authority of Bird v. State, 90 S.W. Rep. 651. As we understand that case, it holds, in effect, that where the owner of a house was not connected with the original design to break the same, but on discovering such design joined in it sufficiently to bring detection, his consent would not be obtained to the entry so as to bar a conviction of the other parties of the crime of burglary.

It seems to us that we were correct in our original opinion, and the motion for rehearing is overruled.