Davis v. State

• Decision Date: 15 January 1913
• Parties: DAVIS v. STATE.
• Court: Texas Court of Criminal Appeals

Page 1094

152 S.W. 1094

DAVIS v. STATE.

Court of Criminal Appeals of Texas.

January 15, 1913.

Appeal from District Court, Floyd County; L. S. Kinder, Judge.

J. A. Davis was convicted of larceny, and he appeals. Reversed and remanded.

Martin & Zimmermann, of Tulia, for appellant. C. E. Lane, Asst. Atty. Gen., for the State.

DAVIDSON, P. J.

This conviction was for theft of a bale of cotton over the value of $50; the punishment being assessed at two years' confinement in the state penitentiary.

The state's contention is that the property belonged to L. L. Rogers. Appellant's contention is that it did not, and the state failed to show ownership in Rogers. The state's contention is the property was taken from the gin yard of a man named Tomson. The indictment alleges ownership in Rogers and possession in Tomson. The theory of the state is the bale of cotton was taken from Tomson's gin yard about the 10th or 11th of November, and was sold a day or two afterwards at Memphis, in Hall county; the gin yard being in Briscoe county. The indictment was found in Briscoe county. Rogers testified that during the fall of 1909 he had several bales of cotton ginned at the Gasoline gin in Briscoe county, and also some ginned at the Turkey gin, about nine miles distant from the other gin; "that on or about October 30, 1909, he rolled his cotton together, and had at that time four bales in the yard at Gasoline and one in the press; that on November 27th thereafter one bale was missing, which, if taken by the defendant, must have been taken about the 10th or 11th of November, 1909." Upon an investigation of the matter, the evidence is to the effect that about November 12th or 13th the defendant sold a bale of cotton in Memphis, about 30 miles distant, and the bale sold by him was marked in blue ink "HLO 171 T," and that the bale of L. L. Rogers, when last seen, was branded "LLR 134 T"; the "T" being the gin brand, and the remainder of the brand that of the owner. The alleged owner, Rogers, says he identified this cotton as being his from the fact that it was in weight within four pounds of his, which weight he got from the ginner, not having seen it weighed. The bale at the time of its inspection by Rogers did not show his brand, or anything from which he could swear positively his brand had ever been placed on the bale of cotton. It was also shown by the state's evidence that appellant made a trip to Memphis with a bale of cotton about the time alleged in the indictment, and that at Turkey, on the road to Memphis, he purchased some bluing and gold dust powders; the theory of the state being that he made this purchase for the purpose of destroying the identity of the bale of cotton.

The evidence on the part of appellant, which came from the state, consisting of questions and answers propounded to him on a former trial, showed that the bale of cotton was the property of one Henry Owens. (The name Owens is spelled differently; some places it is Owens, and others Oyins.) Owens was a cotton picker in that vicinity, and defendant received $1.50 from him for hauling the cotton to Memphis, and paid Owens a check for the total amount of the cotton, less the $1.50 for hauling. Appellant also shows through the witness Gist that the bale of cotton showed no evidence of having ever been washed, and that there were black specks all over the bale, caused probably from being rolled around so much. The testimony of the defendant, placed before the jury by the state, shows that he told the cotton buyer, at the time he sold the cotton to him, that it was not his cotton; that the cotton was not discovered by any one until some time in December, following the alleged theft on November 11th. It is also contended that the bale of cotton was originally marked in black ink, or some black substance, and the state sought to show that this had been washed out and the numbers put on in blue ink, or some blue liquid. It is also shown that both gins, the one at Gasoline and the other at Turkey, branded with the capital T, and that both sometimes branded with blue ink. The evidence discloses, further, that the bale of cotton alleged to have been lost by Rogers was different in weight from that discovered in Memphis, where appellant sold the bale he did sell. Appellant's evidence, which was placed before the jury by the state, was a reproduction of that given by him on a former trial, when it seems there was a hung jury. In this testimony was the statement by appellant that he sold the bale of cotton at Memphis as the property of Owens, for which he received pay, and subsequently paid Owens by giving him a check on the bank for it. This check was introduced in evidence. The state tried to meet this by showing the check had been originally given for a different amount, and after being paid was altered, so as to conform to the amount that he received for the bale of cotton less the $1.50 for hauling it. Appellant's evidence, as introduced by the state, also shows he was not present at the time the cotton was taken, if it was taken, and had no connection with the original taking; that he had agreed to haul the bale of cotton for Owens, and that Owens in fact did turn it over to him, and that he hauled it; that the bale of cotton was not turned over to him at or near any gin, but at a different place. The details of all this are thought unnecessary to be further stated.

Applying the law to the case, the court charged the jury that if appellant fraudulently took from the possession of Tomson and Rogers, or the possession of either of them, the bale of cotton as described in the indictment, and that said bale of cotton was the property of the said L. L. Rogers, and taken without the consent of the said Tomson and Rogers, "or either of them," and with the intent to deprive the said Rogers of the value of the same, and to appropriate it to the use and benefit of him, the said defendant, etc. Exception was taken to this charge, because it authorized the jury to convict if the cotton was taken "without the consent of said Tomson and Rogers, or either of them." The point of objection is to the statement in the court's charge that the jury would be authorized to convict if he took the property without the consent of either of them, referring to Rogers and Tomson. This exception is well taken. The question has been adjudicated in a number of cases. Directly in point see Woods v. State, 26 Tex. App. 490, 10 S. W. 108; Jones v. State, 28 Tex. App. 42, 11 S. W. 830. Those cases support appellant's contention.

The court gave a charge on circumstantial evidence, but did not charge upon the theory of alibi, or upon the issue that if some other party took the property, and appellant received it and sold it, knowing it to have been stolen at the time he received it, yet he could not be convicted, unless he was present and participated as a principal in the transaction. The court also failed to charge with reference to the explanation and statements made by defendant and put in evidence by the state, showing his want of connection with taking the cotton. The court also failed to charge that, unless defendant was connected with the original taking of the cotton, he could not be convicted under the indictment charging theft. The court also failed to charge the jury that if they should find that Owens or some other person committed the theft, and subsequently delivered the property to defendant, they could not convict defendant of the theft. Exception was reserved to the charge for failing to give these phases of the law, and requested special instructions covering all of them were refused by the court.

Appellant requested another special instruction, which was also refused, to wit: "Before you can find the defendant guilty in this case, you must believe from the evidence beyond a reasonable doubt that the bale of cotton in controversy was the property of L. L. Rogers." This charge was not contained in the court's charge, except in the general application authorizing the jury, if they believed that appellant sold the cotton belonging to Rogers and Tomson, or either of them, he should be acquitted. This charge should have been given with reference to the identity and ownership of the property. See Doss v. State, 28 Tex. App. 506, 13 S. W. 788. There are quite a number of other cases, but we deem it unnecessary to cite or discuss them. One of the most serious questions in the case was whether this property was Rogers' or belonged to some one else. The state introduced the evidence, given by appellant upon a former trial, that it belonged to Owens, and that Owens had obtained it as his wages for picking cotton. The evidence of Rogers is very uncertain and indefinite. He knew nothing of the bale of cotton as to its weight, marks, etc., except as given by the ginner's ticket. The ginner's books were not introduced or offered in evidence, and Rogers frankly stated that from the copy that he had made of the ginner's ticket, stating he had lost the ginner's ticket, and from circumstances, he believed this to be his cotton. Another circumstance upon which he relied was his belief that his bale of cotton was marked with a black substance, and that it had been washed out and another brand put on it with a blue liquid. The testimony is fully as strong or stronger to the effect that the bale of cotton had not been washed, and there had been no substitution of a mark on it. This was from parties who made a close and critical examination of the bale of cotton. It is unnecessary to go into a detail of those matters. In this connection, while it did not get into the case, the defendant offered to prove that, in an arbitration between Rogers and the purchaser of the bale of cotton, the arbitrators gave it to the purchaser. This matter, however, was not permitted by the court to go to the jury; but it is recited in the bill of exceptions, and is simply mentioned in this connection. Why...