Floyd v. State

• Decision Date: 21 May 1902
• Parties: FLOYD v. STATE.
• Court: Texas Court of Criminal Appeals

68 S.W. 690

FLOYD v. STATE.

Court of Criminal Appeals of Texas.

May 21, 1902.

Appeal from Bosque county court; B. J. Word, Judge.

W. W. Floyd was convicted of unlawfully selling an estray, and appeals. Affirmed.

Robt. A. John, Asst. Atty. Gen., for the State.

BROOKS, J.

Appellant was convicted of unlawfully selling an estray, and fined $5.

The information contains six counts. On motion of appellant the court quashed the first, third, and fifth counts. Appellant was tried on the second, fourth, and sixth counts of the information, which are as follows: "(2) And the county attorney aforesaid in and to said court does further present: That on or about said date in said state and county one W. W. Floyd did unlawfully sell and dispose of to himself, the said W. W. Floyd, a certain steer, without exhibiting said steer or having said steer in view of persons at the place of sale where said steer was bid off to him, the said W. W. Floyd, at a reduced value of said steer, which said steer had been taken up by him, the said W. W. Floyd, as an estray, and which said steer then and there was the property of some person unknown." * * * "(4) And the county attorney aforesaid in and to said court does further present that on or about said date, in said state and county, one W. W. Floyd did unlawfully sell to himself a certain animal, to wit, one head of cattle, which said animal had been taken up by him as an estray, and which said animal then and there was the property of and belonged to a person unknown, and did then and there unlawfully sell and dispose of said estray one head of cattle, at which said sale were then and there present less than three adult bidders besides the family of the said W. W. Floyd, the taker up of said estray one head of cattle, as aforesaid." "(6) And the county attorney aforesaid in and to said court does further present that on or about said date, in said state and county, one W. W. Floyd did then and there unlawfully sell at private sale to F. H. De Cordova a certain animal, to wit, one head of cattle, which said animal had been taken up by him, the said W. W. Floyd, as an estray, and which said animal was then and there the property of and belonged to a person unknown, and at which said sale were then and there less than three adult bidders present besides the family of the said W. W. Floyd, the taker up of said estray one head of cattle, as aforesaid." Appellant insists that the information is duplicitous, in that it charges separate and inconsistent offenses not growing out of the same transaction. This is not a valid objection to indictment or information charging a misdemeanor. Gage v. State, 9 Tex. App. 259; Waddell v. State, 1 Tex. App. 720; Barnwell v. State, Id. 745; Masterson v. State, 20 Tex. App. 574. An inspection of the counts above copied will show that they are not repugnant charges but simply different phases of the same transaction. Appellant also insists that the fourth count is incomplete, because it does not negative the want of the owner's consent. Neither of the counts in question negatives this fact, nor is it necessary that they should. Under article 917, Pen. Code, relative to taking up an estray, we have heretofore held that the failure to negative the consent of the owner is not a valid objection to an...