Crowell v. State
| Decision Date | 10 December 1887 |
| Court | Texas Court of Appeals |
| Parties | CROWELL v. STATE. |
Appeal from district court, Limestone county; S. R. FROST, Judge.
This conviction was for the theft of one head of cattle, and the penalty assessed was a term of three years in the penitentiary. Moss testified, in substance, that, at breakfast on the day of the alleged offense, the defendant, who was living with him, and was in his debt, told him that he intended to kill a beef on that day, and asked him if he wanted any of the meat. Witness told him that he did, and to bring it to the house. Defendant afterwards brought all but one quarter of a dressed beef to his house, where, in the course of time, it was consumed. Witness was afterwards told where the beef was killed in his (witness') field, and went to that place, but found none of the offal, nor the head, hide, nor feet of the animal. He afterwards spoke to the defendant about the animal and its brand, and defendant replied simply that he had killed his own beef. Foy testified that defendant came to his house on the day alleged in the indictment, and employed him to help butcher a beef. The two then went to Moss' field, in which witness found a young beef tied to a tree. That animal was branded N—N. Defendant claimed the animal as his property, and killed it. Witness helped to butcher it, and helped defendant bury the hide, head, feet and entrails. Witness thought until the burial of the parts that the defendant owned the animal. After the beef was butchered, defendant gave witness a quarter of the beef, which witness took home. Defendant asked witness to say nothing about the killing of the beef, but claimed that he owned it. When witness got home he told his father that he believed that defendant had killed a beef he did not own. Witness had seen the N—N brand in the neighborhood, but did not know who owned it. Carrington testified that N—N was his road-brand; and that passing through Limestone county, some time before the alleged larceny, with a bunch of cattle from Leon county, he lost several head with the said brand. The record of brands was here introduced, and showed the record of the N—N brand as Carrington's brand on the sixteenth day of April, 1887. The offense was alleged to have been committed on the twentieth day of June, 1886.
Burrow & Kincaid, for appellant. W. L. Davidson, Asst. Atty. Gen., for the State.
A fraudulent taking of property without the consent of the owner, with intent to deprive the owner of the value of the property, and appropriate it to the use and benefit of the person taking it, constitutes the offense of theft. Such a taking of the property completes the offense. The factum probandum, therefore, is such taking; it is the main fact in issue. Where the main fact in issue is not directly attested by any eye-witness, but is proved as a matter of inference from other facts in evidence, the case rests wholly upon circumstantial evidence. 1 Greenl. Ev. §§ 13-13d; Burrell, Circ. Ev. 4 et seq.; Eckert v. State, 9 Tex. App. 105. In this case, the evidence shows that before the alleged stolen animal was killed by the defendant, and before he is shown to have had any possession thereof, or connection therewith, it had been taken from its accustomed range, carried into the pasture of one Moss, and there tied to a tree. It is evident, therefore, that the theft of the animal had been completed at the time defendant was first seen to have possession of it. But no witness testified to having seen the taking of the animal from its range. The fact of such taking is only proved as a matter of inference from other facts in evidence. It is only proved circumstantially, and the case is therefore one resting wholly upon circumstantial evidence. This being the character of the case, it was material error to omit to charge the jury upon the rules relating to circumstantial evidence. We do not think the statements made by the defendant in regard to the animal killed by him can be regarded as confessions, proving that he took the animal from its range; in other words, proving that he committed the original theft of the animal. They may have the effect to connect him with the animal after it had been tied to the tree in Moss' pasture, and thus connect him inferentially with the original taking, but they do not afford...
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