Doss v. State

• Citation: 2 S.W. 814
• Parties: DOSS <I>v.</I> STATE.<SMALL><SUP>1</SUP></SMALL>
• Decision Date: 05 June 1886
• Court: Court of Appeals of Texas

2 S.W. 814

DOSS

v. STATE.¹

Court of Appeals of Texas.

June 5, 1886.

Appeal from district court, Milam county.

This conviction was for the theft of a cow and calf, and the penalty imposed was a term of two years in the penitentiary. The opinion sufficiently states the case.

Ford & Ford and R. Lyles, for appellant, insist that evidence fails to sufficiently establish a taking of the animals by the defendant.

Asst. Atty. Gen. Burts, for the State.

WHITE, P. J.

It is insisted that, if it be admitted that the testimony of the state's witnesses be true, still the evidence would not support the conviction in this case, because it does not show "a taking" of the alleged stolen animal by defendant. In other words, that the facts, as stated by the witnesses, do not show that defendant ever exercised such control over, or had such possession of, the animal as would constitute his acts a taking under the statute. Briefly stated, the facts are that the appellant, some time in the summer, proposed to sell a cow and calf to the witness Bob Hardy for twelve dollars and fifty cents, — seven dollars in cash, and the balance to be paid in the fall. Defendant and the two Hardys, father and son, went the next morning to look for the cow. They came to an open place, or sort of prairie, in the woods, and found a red three-year-old cow, with a calf, which defendant pointed out as the one which he wished to sell. They rode around the cow, and, as the witness expresses it, "crossed her out," and the witness telling defendant he would take her, paid defendant six dollars; and, he says, defendant "delivered me the cow and calf, and he (defendant) told me to take the cow, and I took her," — he (defendant) promising to make the bill of sale when the rest of the money was paid, in the fall. Defendant then told Hardy and his son to stay there with the cow, and he would look around and see if he could not find another one of his cows, and, if he could find a better one, he would come back and swap it for the one he had sold witness. Defendant then loped off, and was never seen again by witness until just before the trial. After awaiting his return some time, Hardy and his son drove the cow and calf home. At the time and place defendant sold the cow to hardy there were other cattle near the cow, a short distance off in the timber; but, though the parties rode around the cow, they did not drive her, and, for aught that appears, she did not move out of her tracks during the time defendant was present, nor until she was driven off, after he had left, by Hardy and his son.

It is contended most strenuously that such facts do not constitute "a taking" by defendant, under our statute defining theft; that, in so far as he was concerned, the range possession of the owner was never disturbed by him, and that he had not exercised the slightest control over said animals of any kind whatsoever, much less having them in his manual possession, even though but for a single moment.

In Madison v. State, 16 Tex. App. 436, where the defendant called up the bunch of hogs out of the field, and then sold them to a party who actually took them into possession under his purchase, this was held to be such a taking as would constitute theft on the part of Madison.

Mr. Bishop announces the same doctrine. He says: "When the larceny is of a domestic animal, like a horse, the trespass is sufficient if the animal is ridden, driven, or led away. And doubtless the same is true if it is toled away by food, or by the voice, so as to come under the control of the thief. * * * Suppose a horse or a dog [or hog] to be toled out of possession of the owner by corn, is not this as much a taking and carrying away as the shouldering of a bale of goods would be? I confess I can see no substantial legal difference." 2 Bish. Crim. Law, (7th Ed.) § 806.

In Coombes v. State, 17 Tex. App. 259, it was held that, where the circumstances showed an intent to steal, the killing of the cow of another on the range, though the animal had never actually passed into the manual possession of the slayer, is sufficient to show such a taking as will support a conviction for theft of the animal. "Manual possession, actual handling, does not appear to be essential in case of animals, even in common-law larceny," (2. Bish. Crim. Law, § 813, note 7; Hall v. State, 41 Tex. 287;) and if this is true at common law, where asportation was essential to the crime, a fortiori it should be the rule with us, where asportation is not necessary to constitute the offense. Pen. Code, art. 726.

In Madison's Case, supra, quoting from 2 Russ. Crimes, it was said: "But the taking need not be by the very hand of the party accused; so that, if the thief fraudulently procure...