Graves v. State

• Decision Date: 20 October 1897
• Citation: 42 S.W. 300
• Parties: GRAVES v. STATE.
• Court: Texas Court of Criminal Appeals

42 S.W. 300

GRAVES v. STATE.

Court of Criminal Appeals of Texas.

October 20, 1897.

Appeal from district court, San Saba county; W. M. Allison, Judge.

Dea Graves was convicted of theft, and appeals. Affirmed.

P. M. Faver and M. Fulton, for appellant. Mann Trice, for the State.

HURT, P. J.

Conviction for theft of two steers, the property of W. T. Murray. The indictment alleged that the property was in possession of John Graves, the father of the defendant. It also alleged that W. T. Murray was the owner, and that Graves was holding the property for him. It appears from the record that Graves' wife was in bad health, and that he left San Saba county with his wife, and remained away two months,—July and August, 1895. The record also shows that in July, 1895, Hartley purchased two steers from appellant. These were the steers charged to have been stolen by appellant. Now, it is insisted by counsel for appellant that there is a variance between the allegations in the indictment and the proof; that it should have been alleged that the property was taken from the possession of Will Tate. Tate was employed by John Graves to look after the cattle while he was gone. He did so; Graves paying him for his services. Tate was employed to work for Graves,—look after his cattle, and also the cattle of Murray. Was there a variance in the allegation in the indictment and the proof, under this state of facts? We think not. Tate was simply the servant of Graves, and did not have that possession, management, and control of the property as would require the indictment to charge possession in him. Under the facts in this case the indictment properly alleged that John Graves was the owner of the cattle. He stood in the same relation to the cattle as if they had been his own. Now, this being the case, if the contention of the appellant be sound, no owner of the cattle could employ a hand to look after them, and leave home for any length of time. We are of opinion that there was no variance.

Appellant introduced proof tending very remotely to show that he had purchased the cattle from one Blaylock. We doubt whether, under the proof adduced in support of this contention, the court should have instructed the jury relating thereto; but the court charged the jury fully and clearly in behalf of his contention, and therefore the requested instruction should not have been given, because the court had already submitted the same charge to the jury. If the cattle delivered to appel...