Chambers v. State
| Decision Date | 21 November 1900 |
| Citation | 59 S.W. 261 |
| Parties | CHAMBERS v. STATE. |
| Court | Texas Court of Criminal Appeals |
Appeal from district court, Kaufman county; J. E. Dillard, Judge.
Frank Chambers was convicted of the crime of cattle theft, and from the judgment of conviction, and from an order refusing a motion for a new trial, he appeals. Reversed.
S. H. Jack, for appellant. Robt. A. John, Asst. Atty. Gen., for the State.
Appellant was convicted of theft of one head of cattle, alleged to be the property of J. J. Bullock. The indictment is in the ordinary form, charging theft of the animal. After instructing with reference to theft, the court charged the jury in regard to driving stock from its accustomed range with intent to defraud, and authorized a conviction for this offense. This was excepted to in motion for new trial. Under former decisions, this was held to be correct; but these were overruled in Long v. State, 39 Tex. Cr. R. 461, 46 S. W. 821. For a discussion of the matter, see that case. This was error, for which the judgment will be reversed.
It may be admitted that appellant took the animal in question, and drove it from its accustomed range, in Kaufman county, to the place of one Roberts, in Ellis county. Without going into a detailed statement of the facts bearing upon the question, appellant claimed, and introduced evidence to support that claim, that he drove the animal believing it to be the property of one Mulligan; that Roberts was the brother-in-law of Mulligan, and gave appellant a description of some cattle left by Mulligan when he moved from that neighborhood. Among the cattle was one almost if not identical in description with that alleged to have been taken. The court undertook to submit this issue, but, in our judgment, it was so submitted as not to have sufficiently and pointedly presented the issue. If appellant drove the animal believing it to be Mulligan's, and with no intent on his part to appropriate it to himself, he would not be guilty of a fraudulent taking. The jury should be instructed fairly with reference to this question, and in positive and unequivocal terms.
It is not necessary to discuss the matters raised on motion for new trial with reference to alleged newly-discovered testimony. They cannot arise in this form upon another trial. It is not necessary to discuss the motion for continuance, even if bill of exceptions had been reserved, which was not. The witnesses can be obtained upon another trial. For the...
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Chambers v. State
...in the indictment. This judgment was reversed on the former appeal because the court submitted the second issue. Chambers v. State, 59 S. W. 261, 1 Tex. Ct. Rep. 109. The point, as we gather from the plea, is that because the court submitted the issue of fraudulently driving from the range,......