Bell v. State

• Decision Date: 23 November 1898
• Citation: 47 S.W. 1010
• Parties: BELL v. STATE.
• Court: Texas Court of Criminal Appeals

47 S.W. 1010

BELL v. STATE.

Court of Criminal Appeals of Texas.

November 23, 1898.

Appeal from district court, Hardin county; L. B. Hightower, Judge.

T. J. Bell was convicted of theft, and he appeals. Reversed.

W. L. Douglass and Lanier, Kirby & Martin, for appellant. Mann Trice, for the State.

HENDERSON, J.

Appellant was convicted of the theft of cattle, and his punishment assessed at confinement in the penitentiary for a term of two years; hence this appeal.

The theory of the state, mainly supported by the testimony of Pelt, was that the two yearlings in question were taken by Pelt (an accomplice) and the defendant from the range in pursuance of a conspiracy, were driven into the pasture of appellant, and the next day were driven by appellant to Beaumont, some 20 miles, and there sold. The testimony tending to corroborate the state's testimony of appellant's connection with the offense was that he was acquainted with the cattle of Gus Mobray, the alleged owner, and that these were yearlings sucking his cows, and the fact that he sold the yearlings to McFadden in Beaumont, and stated to him that he raised said yearlings. The theory of the defendant was that he and Pelt were on the range together; that he had some cattle of his own in his possession, gathered just before Pelt came up, and had started with them to his pasture, when Pelt suggested that he had two yearlings of his own that he would put in the herd, and get him to drive to Beaumont and sell for him; that thereupon appellant stopped the herd, and waited for Pelt, who went to some cattle in the prairie within view (as he stated about half a mile distant), cut out two yearlings, and drove to the herd; and that they then drove the entire herd to the pasture of appellant; that appellant, while he knew that Pelt had no cattle in that range, yet had no reason to believe that he was stealing said cattle, and that he received them and drove them to his pasture and thence to Beaumont and sold them; that, if he had any guilty connection with said cattle at all, it was not as an original taker, but at most only as a receiver after the said animals had been stolen. He denied any conspiracy between himself and Pelt to steal the cattle, and also testified, if he had stated to McFadden when he sold the cattle that he had raised them, it was only in a general way, as he had raised most of the 15 head he sold him. On this presentation of the case the court gave a charge on theft generally, and also gave the following charge on theft in pursuance of a conspiracy: "But I charge you that if you find from the evidence that the defendant and the said Pelt had entered into a conspiracy to steal unbranded yearlings on the range, and in pursuance of such conspiracy they went in search of such cattle, and the said Pelt found the cattle mentioned in the indictment, drove the same to where defendant was, and together they fraudulently took and penned such cattle, then the act of Pelt in first taking the cattle would in law be the act of the defendant, and would connect the defendant with the original taking." The court also gave the usual charge defining who were accomplices, and then gave the following charge: "Now, you are charged that the witness John Pelt was an accomplice according to his own testimony, as that term is defined in the foregoing instruction; and you are further instructed that you cannot find the defendant guilty upon his testimony, unless you are satisfied that the same has been corroborated by other evidence tending to establish that the defendant did in fact commit the offense." Appellant objected to the charge on conspiracy on the ground that it made appellant a principal whether...