Gardner v. State

Decision Date06 November 1918
Docket Number(No. 5006.)
Citation208 S.W. 920
CourtTexas Court of Criminal Appeals

Appeal from District Court, Edwards County; James Cornell, Judge.

Buck Gardner was convicted of theft, and appeals. Reversed and remanded.

A. E. Aiken, of Rocksprings, and Will A. Morriss, of San Antonio, for appellant.

E. B. Hendricks, Asst. Atty. Gen., for the State.


The conviction was for theft of goats. The appellant was in possession of a ranch containing several sections of land, which was inclosed with a pasture fence, and running at large in the pasture was his herd of 4,000 goats. Ira Kuykendall also owned a herd of about 8,000 goats in his pasture situated about 15 miles distant from that of appellant. He lost about 70 head of his goats between the 1st and the middle of June, 1917. They were missed from his pasture, and on August 20th of the same year 32 of his goats were found in the herd of appellant. There is evidence that about the 1st of July, 1917, appellant, anticipating an inspection of his herd of goats, caused about 150 of the goats of various brands, which were described as strays, cut out of his herd and put in another pasture. Some of the goats in this lot had Kuykendall's brand on them, his brand and that of appellant being quite similar; one being what is denominated as a "T" cross and the other an "H." The identification of the goats was by the brands.

A witness for the state by the name of Thomas testified that he had had a conversation with appellant in which appellant told him, in substance, that if he did not put some goats in his pasture that he (appellant) was going to appear against him in court. Witness was under charge of theft of other goats. This witness testified that subsequently he and a witness by the name of Davidson stole about 70 goats from Kuykendall's pasture, and that he (the witness) put them in appellant's pasture. There was evidence that appellant had stated he had bought some goats from Kuykendall.

The indictment contained three counts — one charging appellant as an accomplice, one charging him with fraudulently receiving stolen property, and one charging theft. The court submitted the law of circumstantial evidence, and gave a charge in substance as follows: Goats, upon their accustomed range, are in contemplation of law in possession of their owner, and, though they may have strayed from their accustomed range, they are still in contemplation of law in the possession of the owner thereof. Likewise goats which may have been taken from the possession of the owner, and later abandoned by the person or persons taking, are yet in contemplation of law in possession of the owner. This charge is complained of as touching an issue or issues not raised by the evidence. It is also seriously insisted that, while there was evidence supporting the charge of accomplice and of fraudulently receiving stolen property, the evidence fails to support the finding of the jury convicting the appellant of theft. The law of principals was not submitted and not involved.

It is insisted, however, that the evidence alluded to, in which appellant caused the cutting out of his herd goats which did not belong to him before their inspection, constituted a conscious possession of recently stolen property, from which the jury was authorized to draw the inferences necessary to sustain the charge of theft. Granting that the facts mentioned constituted proof of the possession of recently stolen property which unexplained might, with the other...

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