Johnson v. State

• Decision Date: 05 March 1890
• Citation: 13 S.W. 651
• Parties: JOHNSON <I>v.</I> STATE.
• Court: Texas Court of Appeals

Page 651

13 S.W. 651

JOHNSONv.

STATE.

Court of Appeals of Texas.

March 5, 1890.

Appeal from district court, Stephens county; T. H. CONNER, Judge.

J. H. Davenport, Viale & Son, and R. B. Truly, for appellant. W. L. Davidson, Asst. Atty. Gen., for the State.

WILLSON, J.

This conviction is for the theft of a yearling alleged to be the property of R. H. McCain, and to have been taken from the possession of said McCain. It appears from the evidence that on November 12, 1886, in consideration of $65 paid by said McCain to defendant, the latter executed and delivered to the former an instrument in writing, reciting that he (the defendant) sold to the said McCain 10 cattle, yearlings, branded in defendant's brand, which cattle defendant obligated himself to keep through the winter, and to deliver to the said McCain on the 1st day of April, 1887. At the time of executing said writing defendant owned other cattle. There is no description of the 10 head of cattle mentioned in the said writing, further than their age and brand. It does not appear from the evidence that said cattle were the only ones of that age and brand owned by defendant at the time of the execution of said writing, nor does it appear from the evidence that the animal named in the indictment was one of the 10 head mentioned in said written contract. Said 10 head of cattle were never separated from defendant's other cattle; were never in any manner designated and set apart as said McCain's cattle; were never at any time delivered to said McCain. It is for the theft of one of the cattle mentioned in said written contract that the defendant has in this case been convicted.

As we understand and construe the contract as to said 10 head of cattle, it does not evidence a complete sale of said cattle, so as to transfer the title to and possession of them to said McCain. The transaction was an executory sale merely of the cattle. It remained for the defendant to keep said cattle through the winter, and deliver them to McCain in April, 1887. It remained for him to separate said cattle from his other cattle, and in some way designate them as the cattle sold by him to said McCain. If any or all of said cattle had died or been lost while in charge of the defendant, the loss would have fallen upon him, and not upon said McCain. We think that the evidence shows that the title and possession of said cattle was never changed from the defendant to said McCain, and that, therefore, this conviction is...