Harrell v. State
Decision Date | 05 May 1897 |
Citation | 40 S.W. 799 |
Parties | HARRELL v. STATE. |
Court | Texas Court of Criminal Appeals |
Appeal from district court, Jones county; E. J. Hamner, Judge.
Jim Harrell was convicted of the theft of a horse, and appeals. Reversed.
Christenberry & Colbert, for appellant. Mann Trice, for the State.
Appellant was convicted of the theft of a horse, and given five years in the penitentiary, and prosecutes this appeal.
There are but two assignments which are necessary to be considered in order to make a proper disposition of this case. These relate to the charge of the court as to how the jury were to weigh the testimony of the witnesses, and the charge of the court asked by appellant, which was refused, covering a phase of his defense. In order to a presentation of the questions involved, we will summarize the testimony sufficiently to show the bearing of said charges. The evidence on the part of the state tended to show that appellant during the year 1894 worked for the prosecutor, P. L. White, who owned a ranch in Fisher county. In the spring of 1895 the prosecutor lost a certain black horse, five or six years old, which is described in the evidence. He recovered said horse in the year 1896. It was shown that defendant took possession of said horse, and rode it some length of time, and, while using him, rode him to New Mexico; and there was some testimony tending to show that, some time after he had been using said horse, he disposed of same to one Butler. This testimony, however, appears to have been hearsay, but, it seems, was brought out by the defendant on cross-examination, and the court refused to strike it out. Appellant showed by one Wyatt that he (appellant) came to the house of the witness, and, while there, got up off of the range, and took possession of the horse in question, stating that he was P. L. White's (prosecutor) horse, and that said White had authorized him to take him and use him. The defendant himself testified to the same effect; that he broke said horse, and, after using him a while, he turned him loose on the range; that he afterwards told the owner about it, and got a horse from said owner and went down there to look for it, but could not find the alleged stolen horse. He stated that he did not take said horse to New Mexico, and did not sell him to said Butler. P. L. White denied that he ever gave defendant any authority to take up and use said horse. On appellant's defense as to authority from White, the court charged the jury as follows: "If you believe from the evidence that defendant took the horse in question, but that he was authorized by P. L. White to take up the said horse for the purpose of returning the same to said P. L. White, or if you have a reasonable doubt as to whether or not defendant was authorized to take up said horse, then you will acquit him." Appellant requested, in addition to said charge, the following special charge: "You are charged that unless you believe from the evidence, beyond a reasonable doubt, that at the time defendant took possession of the horse charged to have been stolen, if he ever had him in possession, and at such time of taking he did not intend to appropriate such horse to his own use, but afterwards did appropriate him to his own use, such appropriation would not be theft, under the charge; and, if you so find from the evidence, you should acquit the defendant." It is insisted by appellant that this last charge presented a phase of the case not embodied in the above-mentioned charge given by the court; that is, that the phase of the evidence suggested that although the jury might not believe that White, the owner of the horse, had authorized him to take up and use the same, yet at the time he so took up said horse without authority he did not then intend to steal him, but formed the intent to do so subsequently, and that under such circumstances the subsequent appropriation was not theft. The evidence shows by the witness Wyatt that at the time appellant took up said horse he then made the statement that he was authorized to do so by the prosecutor, White, and that he used said horse in the neighborhood, so far as the record discloses, openly, some time before he went off. Now, it may be true that appellant lied about the authority he had from White to take up said horse, but he may have taken him up for a mere temporary use, and did not have the intent at the...
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Keigans v. State
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Daggett v. State
... ... Appellant was a witness in his own behalf. This charge was upon the weight of the testimony. See Harrell v. State (Tex. Cr. App.) 40 S. W. 799. No exception was taken to this charge, and our attention is called to it for the first time on motion for rehearing. The case was tried before the new law on the subject of charges went into effect. We hold that the charge was erroneous. The motion for ... ...
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Williams v. State
...or prejudice, if any, of witnesses, as well as their manner of testifying." The question is similar to the one decided in Harrell v. State (just decided) 40 S. W. 799, and, for the reasons there assigned, the motion for a rehearing is granted, and the judgment is reversed and the cause ...