Byrd v. State, 14141.

• Decision Date: 29 April 1931
• Docket Number: No. 14141.,14141.
• Parties: BYRD v. STATE.
• Court: Texas Court of Criminal Appeals

38 S.W.2d 332

BYRD v. STATE.

No. 14141.

Court of Criminal Appeals of Texas.

April 29, 1931.

Commissioners' Decision.

Appeal from District Court, Hall County; Henry S. Bishop, Judge.

Clyde Byrd was convicted of receiving stolen property, and he appeals.

Reversed and remanded.

R. H. Cocke, of Wellington, for appellant.

Lloyd W. Davidson, State's Atty., of Austin, for the State.

CALHOUN, J.

The conviction was for receiving stolen property and the punishment assessed at two years in the penitentiary.

The indictment in this case contained one count, which charged that the appellant, Clyde Byrd, "did then and there unlawfully and fraudulently receive from M. L. Mooney, one head of cattle then and there belonging to E. W. Blain, and which said cattle had theretofore been acquired by the said M. L. Mooney, in such manner as that the acquisition comes within the meaning of the term theft, and the said Clyde Byrd did then and there fraudulently receive said cattle then and there well knowing the same to have been so acquired."

The state's case was made by the admitted accomplice, M. L. Mooney, who testified in effect that in the fall of 1927 he was living in Oklahoma, about three and a half or four miles east of the Texas state line, and that the appellant at that time was living at Shamrock, in Wheeler county, Tex. He testified that he was acquainted with the appellant at that time, and saw him at different times during the fall of 1927. He testified that in the fall of 1927 he had a conversation with the appellant with reference to his handling cattle that he would steal; that said conversation occurred in Collingsworth county near Aberdeen; that the first conversation occurred in October or November, 1927; that he told the appellant he would go down in Oklahoma and see one George Bliss about stealing some cattle; that he had to be with George to get the cattle out of there. The substance of the understanding between the said Mooney and appellant was that said Mooney would go into Oklahoma and steal some cattle and bring them into Texas and deliver them to the appellant, and that the appellant was to sell the cattle and receive $5 a head therefor; that, in pursuance of this agreement, he, Mooney, and one Knight went into the state of Oklahoma and stole 28 head of cattle, the greater portion of which belonged to one Blain; that the cattle were driven across the state line, placed in a pasture, and appellant notified thereof; that appellant sold four head of the cattle, and the price agreed upon as between himself and the accomplice for the four head was $50 apiece, and that in consequence of their agreement the appellant paid him $180; that appellant sold these cattle, and subsequently sold about 23 other head to a man by the name of George for $800, for which the said Mooney received $685 from appellant, which was his part coming from said cattle under their agreement. He further testified that, just before he went into Oklahoma and got the cattle, the appellant asked him when he would go, and he told him that he would go to-morrow; that he further told the appellant that he was going to get the cattle, and asked him how many to get, and the appellant said it did not make any difference, and asked the witness to let him know when he got back. He further testified that the appellant never bought any of the cattle from him; that he took the cattle and got the money out of them and sent the witness his part of it; that he did not sell the cattle to Clyde Byrd; and that said Byrd did not have any money with which to buy cattle.

The issue raised is whether the evidence proves a case of theft and not one of receiving stolen property. In the case of Smith v. State, 21 Tex. App. 107, 17 S. W. 552, the facts showed that Smith and others entered into a conspiracy to steal cattle which were in Erath county, the plan agreed upon being that the others should take possession of the cattle in Erath county and bring them to Parker county and deliver them to Smith, who would remove them to Tarrant county, sell them, and divide the proceeds. This court held Smith to be a principal in the theft because the conspiracy was not completed until the cattle were sold, and the selling of them seemed to be Smith's part of the undertaking. The Smith Case on page 133 of 21 Tex. App., 17 S. W. 558 is a companion case to the one first cited.

In the case of Burow, Jr., v. State, 85 Tex. Cr. R. 140, 210 S. W. 805, Judge Morrow, in passing on a motion for rehearing, stated the rule laid down in Smith v. State, supra, to be to the effect that, where persons enter into a conspiracy to commit the crime of theft of property, contemplating that one or more of the conspirators shall take the property from the possession of the owner and deliver it to another conspirator not present at the time of the taking to be by him converted, and the proceeds distributed among all, and that, when this conspiracy is carried into effect by the taking of the property from the possession of the owner by one or more of the conspirators, delivering it pursuant to agreement to another to be converted by him pursuant to the previous agreement, to the end that the proceeds may be distributed, all are principals within the meaning of the statute.

Among cases illustrating the rule prevailing in this state upon this subject is that of Mason v. State, 31 Tex. Cr. R. 311, 20 S. W. 564, 566, from which the following...