Willis v. State , 24 Tex. Ct. App. 586 ( 1888 )

White, Presiding Judge.

This is a companion case to the cases of Boyd v. The State and Willis v. The State, decided on a former day of the term", the two convictions in those cases in the court below being for the theft of a cow, the property of W. T. Wright. This case presents a joint prosecution and joint conviction for the theft of one head of neat cattle, the property of one D. E. Coffman. There is but little if any difference in the facts proven in this and the two other cases. It will be remembered that the Wright cow ranged one and a half miles west of Abilene in Taylor county. Coffman’s cow ranged five or six miles southwest of Abilene in Taylor county. Coffman had not seen his cow in her range since the fall of 1886. When she was next seen she was in the pen of appellant Boyd in Jones county, on the tenth of August, 1887, where these appellants and other parties altered the mark and brand upon her. Neither of these appellants nor any one shown to have been acting in concert with them, was ever seen in possession of the animal in Taylor county. When found in possession in Jones county, they made no explanation nor attempted any as to their possession.

On this trial they pleaded specially in bar to the prosecution that they had already been tried and convicted for the theft of the Wright cow, and that the taking, if any, of the two cows was one and the same transaction, and occurred at one and the same time and place, and that the evidence necessary to a conviction in the one was essential to a conviction in the other case.' It is a well settled rule that the stealing of different articles of property belonging to different "persons at the same time and place, so that the transaction is the same, is but one offense, and the accused can not be convicted on separate indictments charging different parts of one transaction as in each a distinct offense. A conviction on one of the indictments bars a prosecution on the others. (Wilson v. The State, 45 Texas, 76; Wright v. The State, 17 Texas Ct. App., 551; Shubert v. The State, 21 Texas Ct. App., 551.)

This plea was submitted to the finding of the jury under appropriate instructions by the court, and in their verdict in response to this issue they found the special plea to be untrue. Upon the facts before them we are of opinion the jury were warranted in this finding, because, in addition to the fact that the animals belonged to different owners, they did not run in the same range, and it is not probable they were taken at the same time and place. (Alexander v. The State, 21 Texas Ct. App., 406.)

With regard to this special plea, it appears that the jury, after their retirement to consider of their verdict, wished additional instructions from the court as to the party upon whom the burden of proof rested to establish the issue presented by said plea. A writing propounding this question was sent to the judge through the sheriff, but the same was not signed by the foreman but by one of the other jurors. This, it is insisted, was violative of the statutes which provide that a jury shall communicate with the court through their foreman. (Code Crim. Proc., arts. 695, 696; Shipp v. The State, 11 Texas Ct. App., 46; Conn v. The State, Id., 390; McDonald v. The State, 15 Texas Ct. App., 493.) At most the matter complained of was an irregularity, and it is one which does not appear to have been objected to by either the court or the foreman of the jury. How the defendants have been prejudiced or injured by the fact that the request was signed by one of the jurors, and not by the foreman, is not manifest. In response to the request the court instructed the jury that the burden of proof to establish the special plea by a preponderance of evidence was upon the defendants. This instruction was correct. Upon a special plea of this character the defendant" asserts the affirmative of the issue, and the obligation rests upon him to prove it. (Hozier v. The State, 6 Texas Ct. App., 501; Jones v. The State, 13 Texas Ct. App., 1.)

As before stated, appellants nor either of them were ever seen in possession of the animal in Taylor county, and it had not been seen by the owner on the range in that county for several months prior to the time it was found in Boyd’s pen in the possession of appellants. It was a question as to whether the facts established a case of recent possession or not, and this question of recent possession should have been submitted to the jury under proper instructions as to the law applicable to such possession. (Lehman v. The State, 18 Texas, Ct. App., 174, and authorities there cited, and Boyd v. The State, ante, 570. No such instruction was embraced in the charge given.

Opinion delivered February 1, 1888.

Again, in so far as the appellant Willis is concerned, we are of opinion the facts connecting him with the animal demanded of the court the giving of his special instruction which was requested in these words, viz.: “Should you believe from the ■evidence that defendant W. E. Willis simply stayed or went Nome, if Boyd’s house was his home, and was requested to assist in branding said cattle, without a previous agreement or participation in the offense charged,' you will acquit him.” This instruction was refused and the ruling was erroneous. (Perry v. The State, 41 Texas, 483; Allen v. The State, 42 Texas, 517.) Such other questions as are not herein noticed will be found disoussed in Boyd v. The State, ante.

The judgment is reversed and the cause remanded.

Reversed and remanded.