Harding v. State , 49 Tex. Crim. 601 ( 1906 )

Appellant was charged with the theft of a horse, having acquired the same as a bailment under article 877, Penal Code.

Appellant complains of the method by which he was examined with reference to other offenses, to wit: Counsel for the State asked the following questions: "Berry, how many times have you been charged across there in the county court with the offense of theft in the last two years?" And again, "Berry, do you remember on the 27th day of February of this year of stealing a coat from a fellow named Beeler?" To the first question, defendant answered he did not remember; and he gave a negative answer to the second. And in the fifth bill of exceptions, it is shown defendant was asked: "Do you remember what you did steal the last two times you were sent to jail?" And he replied, "he never had stolen anything in his life." The answers of defendant could not have injured him. It was competent to ask if he had been charged or convicted of any felony or theft, inasmuch as appellant had gone on the stand and become a witness in his own behalf, and he could be required to answer. The method pursued in the said bills, asking defendant if he had stolen the coat, etc., was improper: still we do not see it injured him, as his answers were favorable.

We make the same observations with reference to bill number 3. It was not a proper method of examination to ask witness H.O. Winfrey if appellant "did not swap them all a farewell for the horse." Still it was evidently a piece of pleasantry and not calculated to injure appellant's rights.

It was also improper for State's counsel to offer to bet the jury his gun and dog against 5 cents, if they turned defendant loose, before six days the grand jury would have him indicted for stealing another horse. No charge was asked with reference to this argument, and we do not consider it of that character that would require a reversal of this case.

Nor do we believe that it was improper for the court to have defined theft. Such a charge may not have been called for, yet the giving of the same would not be reversible error. Appellant was charged with theft as bailee of property. While in their essential elements general theft and theft of property under bailment are much alike, yet the definition of theft by bailment is somewhat different from general theft. The definition of the other character of theft in the charge would not constitute reversible error.

We think the testimony shows a bailment as to the property alleged to have been stolen; that is, the property was originally taken without any absolute consent; and the circumstances show an implied consent to the taking — especial leave granted to appellant by the owner of the horse to keep charge of the same, after he was seen going off with it, would create a bailment of the property, and the conversion of the same thereafter would constitute theft.

There being no error in the record, the judgment is affirmed.

Affirmed.

Brooks, Judge, absent.