Duncan v. State.

• Decision Date: 20 December 1905
• Citation: 91 S.W. 572
• Parties: DUNCAN v. STATE.
• Court: Texas Court of Criminal Appeals

91 S.W. 572

DUNCAN v. STATE.

Court of Criminal Appeals of Texas.

December 20, 1905.

Appeal from District Court, Henderson County; B. H. Gardner, Judge.

Jesse Duncan was convicted of theft, and he appeals. Affirmed.

Rehearing denied February 14, 1906.

Richardson & Watkins, for appellant. Howard Martin, Asst. Atty. Gen., for the State.

HENDERSON, J.

Appellant was convicted of the theft of two bales of cotton, over the value of $50, and his punishment assessed at two years' confinement in the penitentiary.

The indictment is in two counts, the first of which charges that appellant "did then and there unlawfully and fraudulently take two bales of lint cotton of the value of $70, the same being the corporeal personal property of Register Bros., a mercantile firm composed of H. Register and C. F. Register, from the possession of the said H. Register and C. F. Register, and from the possession of C. C. Matthews, who was holding the same for the said H. Register and C. F. Register, without the consent of the said H. Register and C. F. Register, and without the consent of the said C. C. Matthews, or either of them, with intent to deprive the said Register Bros. of the value thereof, and with the intent to appropriate it to the use and benefit of him, the said Jesse Duncan." The second count charges as follows: That appellant "did then and there unlawfully and fraudulently take from the possession of one C. C. Matthews, who was holding the same for H. Register, two bales of cotton of the value of $70, the same then and there being the corporeal personal property of and belonging to the said H. Register, without the consent of the said H. Register, and without the consent of the said C. C. Matthews, or either of them, and with the intent then and there on the part of him, the said Jesse Duncan, to deprive the said H. Register of the value of the same and to appropriate the said property to the use and benefit of him, the said Jesse Duncan."

When the testimony was concluded, appellant moved to quash the first count on the ground that the evidence disclosed that there was no such firm as Register Bros., that the firm name disclosed by the testimony was C. F. Register, and that consequently there was a variance as to the ownership. We do not concur in this view. It will be noticed that the count does not allege that the name or style of the firm was Register Bros. The allegation is that it was the property of Register Bros., a mercantile firm composed of H. Register and C. F. Register. This, it seems to us, is equivalent to saying that the cotton was the property of H. Register and C. F. Register, brothers, and who composed a mercantile firm.

It is further contended, as to both counts of the indictment, that the proof showed that Leonard Donald was in the actual care, control, and possession of the cotton, when alleged to have been stolen; and therefore the allegation that the same was in the possession of C. C. Matthews constituted a variance, and appellant should have been acquitted on this ground. In this connection, it was further contended that article 445, Code Cr. Proc. 1895, which authorizes, "in an indictment for theft, where the property is owned in common or jointly by two or more persons, the ownership may be alleged to be in all or either of them, "refers exclusively to the ownership in fee, or actual ownership of the property, and not to possessory ownership; that this view was presented to the court and an instruction requested on that line. But the court not only refused to give such instruction, but gave a contrary one, in effect telling the jury that, if Matthews and Donald were joint possessors of the property, the possession or ownership for the purposes of prosecution could be alleged in either; and that the allegation that the ownership was in Matthews was proven, if the evidence showed a joint right of possession in both of said parties. The argument of appellant in support of this position is quite cogent, but we believe the question has heretofore been decided adversely to his contention, and has been followed in a number of decisions. In Coates v. State, 31 Tex. Cr. R. 257, 20 S. W. 585, article 445 is held to apply to possessory owners as well as to actual owners. It will be seen from an examination of appellant's brief that this question was made in the case. Counsel in that case contended that article 445 (which was then article 426) only authorized the allegation of ownership in one where there is a joint ownership, and this refers to actual ownership (the general ownership) and does not authorize such allegation in case of special ownership based upon actual care, control, and management. In such case possession must be alleged to be in the person having actual care, control, and management, etc. The indictment in the case alleged ownership in J. P. Lynn. The evidence disclosed the ownership, as well as the actual care, control, and management to be in said Lynn and one Irvine. They were partners. The court in appropriate terms...