Putty v. State , 126 Tex. Crim. 268 ( 1932 )

Either through inadvertence or by typographical error, we said in our original opinion that appellant "kept it (referring to hog he was charged with stealing) from the time of taking in January, 1931, to that of the trial in 1932." It appears from the record that the taking was on January 6, 1932, and this trial was on January 27, 1932. The original opinion has been corrected to be in accord with the record.

It is appellant's contention that under the facts when viewed in the strongest light for the State he is not guilty of theft, and that the finding of the jury is in the face of the evidence under the defensive charge quoted in our original opinion.

Purdom was a tenant on appellant's place in 1931. Purdom had moved to another place about ten days before appellant took the hogs in question. The record leaves no doubt but that appellant and his former tenant were in a controversy about the rent. Purdom testified: "I suppose he and I were having some trouble about a settlement there, about the rents; and Mr. Putty claimed I got a load of his corn." He denied having gotten the corn and denied having admitted in the presence of appellant and other parties that he got it, although such admission was testified to by appellant and another witness. Appellant testified that three loads of rent corn were placed in his barn in September and that after Purdom moved from the place appellant noticed that some of the corn was missing; that at appellant's insistence Purdom came back to appellant's place and the rent corn was measured and fell one load short, and Purdom admitted that he would have to replace it, and said he got the corn, but would not further discuss a settlement of the matter, but left hurriedly; that appellant went the next day to see Purdom about the corn and was told by the latter's daughter that her father was not at home. It is gathered from appellant's testimony that he had some doubt about Purdom being away from home and thought he was avoiding a meeting to discuss a settlement. Appellant further testified that he told Purdom's daughter that he was going to get the pigs, and take them home and keep them until her father had a settlement about the corn, and for her to tell her father when he brought the corn back he could have the pigs; that his purpose in hauling the pigs away "was to get a settlement, get his corn, that without taking the pigs he could not get to see Purdom, and that he thought if he took the pigs Purdom would come to see about the matter." Miss Vera Purdom testified that appellant came and got the pigs about four o'clock in the afternoon and took them in her presence. Her version of the incident is as follows: "* * * What the defendant here said he wanted to see my father about, he just asked where he was. He said he had come after his corn; come to get his corn. As to his claiming that my father owed him a load of corn, that is what he said; and had come to get it. My father wasn't there, and of course, I couldn't deliver him the corn. In regard to statement he made to me about, he believed my father was there in the house, he thought, maybe he was around the place somewhere; that is what he said. * * * The statement he made when he went to take the hogs, or did take them, he said he was taking the pigs in place of the corn. He was going to take the pigs in place of the corn. He never told me, that I heard, when my father paid him for the corn, he was ready to return the pigs. What he told me while he was leaving about that; I don't know what he said, he said something to me. I couldn't say that he did not tell me, because I don't know what he did say." Appellant took the hogs in broad open daylight, in the present of Miss Purdom, having a lady in the wagon with him at the time, and asked a man who was passing to help catch the hogs and put them in the wagon. The "taking" was not of that character usually found in theft cases. It seems no other conclusion from the evidence can be reached than that appellant took the hogs either in payment for the corn, or to hold them as security for such payment, and that no other conclusion finds support in the testimony. While the trespass committed by appellant in taking the hogs was outrageous, for which he would be answerable in another tribunal, yet if he took them for either of the purposes named, our court has held that the "fraudulent intent" necessary in the commission of every theft would be absent. Supporting his contention appellant cites a number of cases from our own court; most of them were reversed for failure to give an instruction similar to the one which was given in the present case. A short review of the cases may be interesting as containing expressions of this court touching the guilt or innocence of accused under facts similar to those here found.

In Williams v. State, 3 S.W. 226, accused was charged with theft of lumber from the trustees of a certain school community. Appellant asked two special charges, as follows: "(1) If you believe from the evidence that defendant took the lumber he is charged with stealing, openly, and without any effort at concealment or intent to steal, he would not be guilty of theft. (2) If the defendant took and held the lumber he is charged with stealing in order to secure him in the payment of an indebtedness due him from the Brooklin community, he would not be guilty of theft." The court said that the two instructions requested were unquestionably the law.

In Young v. State, 30 S.W. 238, accused was convicted for the theft of a watch. It was his claim that the owner of the watch was indebted to accused in the sum of eight dollars and a half for labor and would not pay him; that he went to the owner's house and took the watch when no one was at home but that he called the attention of a negro woman who was in the yard washing to the fact that he had gotten the watch. The court gave a charge substantially like the one given in the present case. In affirming the judgment the court set out the evidence which sustained the conviction, as follows: "The evidence in this case amply sustains the verdict. There was no question as to the taking of the watch by defendant. This fact is even admitted by him in his defense, and he sought to justify it on the ground that the owner, Ousley, owed him at the time $8.50 for work that he had done for him, and that he took the watch to secure this debt. The existence of the debt was denied by Ousley; but conceding that the latter did owe defendant, in view of the fact that the debt was small in comparison with the property taken, and that although defendant went to Ousley's house a short time after taking the watch, and did not then inform him of the fact and afford him an opportunity to redeem it, and the fact that he made no effort to produce the negro woman at the trial to whom (by his testimony) he told, at the time of taking the watch, the purpose for which he took it, — all this, in connection with the proof that he traded the watch and chain, receiving therefor much more than his debt amounted to, and gave at the time fase statements as to how he acquired them, no doubt induced the jury to believe that the defense set up by appellant was a sham and a pretense."

Young v. State, 37 Tex.Crim. Rep., 36 S.W. 272, was reversed for the failure of the court to give a charge upon the defensive issue. In that case accused was charged with having stolen a plow stock. The testimony was uncontradicted that he took it at night without the owners' knowledge or consent. It was further without dispute that accused had been hauling goods for the owners of the plow stock for a long while and that at the time the implement was taken the owners were indebted to the accused in the sum of $21. Appellant testified that at the time he took the stock it was his intention to allow therefor a credit on the amount which was due him. While the reversal was because of the failure to give a charge, the view of this court as expressed with reference to the matter is pertinent to the present case. It was said: "If he took the property, as he claimed, with no fraudulent intent, under the circumstances detailed by him, and with the intent to pay the owners for the same, in the settlement between the alleged owners and himself of the amount due him, and the jury believed this, he would be entitled to an acquittal."

Wolf v. State, 14 Texas App., 210, was tried before the court. The evidence shows that one Martin owed accused about eight dollars; that in Martin's absence accused went to Martin's place and with the assistance of an employe of Martin measured out and took off sixteen bushels of Martin's corn. The court found appellant guilty, although stating he concluded from the evidence that accused "took the corn in question to pay himself for what he considered the prosecuting witness owed him, without his consent and in his absence." The judgment of conviction was reversed, this court saying that however liable accused might be in trespass he was not guilty of theft, there being an absence of fraudulent intent at the time of the taking.

In Gray v. State, 91 Tex.Crim. Rep., 239 S.W. 953, the facts show that a boy about sixteen years old went to accused's store and sought to get change for a ten dollar bill. The father of the boy ran an account with accused and was owing him at the time. Accused kept the ten dollars, saying he would credit it upon the account. Accused sought to have the jury told that if the father was indebted to accused, and the ten dollars was applied to the account they should acquit. This court in passing upon the matter said, the charge ought to have been given because "if the facts were as outlined in the special charge, there was an absence of an intent to steal."

While this court hesitates to reverse upon the facts, yet it becomes its plain duty to do so when the verdict of guilt fails to find support in the evidence. It is plain that appellant was not well loved by his neighbors. It got into the record from one of them that he was "a contentious kind of a fellow, and had little bickerings and complains over little things;" another said that appellant "has a reputation that he is hard to get along with, and chinchy and contentious." These things, if true, and appellant's conduct incident to the present case, would not commend him as a neighbor, and may shed some light on the jury's verdict, but such characteristics and conduct would not justify his condemnation as a thief.

We have reached the conclusion that appellant's motion for rehearing should be granted, the judgment of affirmance set aside, and the judgment of the trial court should be reversed and the cause remanded, and it is so ordered.

Reversed and remanded.