Harrington v. State

• Decision Date: 22 February 1893
• Citation: 21 S.W. 356
• Parties: HARRINGTON v. STATE.
• Court: Texas Court of Criminal Appeals

Page 356

21 S.W. 356

HARRINGTON v. STATE.

Court of Criminal Appeals of Texas.

February 22, 1893.

Appeal from district court, Wilbarger county; G. A. Brown, Judge.

Warren Harrington was convicted of larceny, and appeals. Reversed.

Cockrell, Cockrell & Tillett and Stephens & Huff, for appellant. R. L. Henry, Asst. Atty. Gen., for the State.

HURT, P. J.

Appellant was tried and convicted of the theft of one head of cattle, the property of George E. Cowden. The trial was in Wilbarger county. In the same county appellant had been convicted for the theft of one head of cattle, the property of some other person than George E. Cowden. The cattle were not taken in Wilbarger county, but in other counties of this state, and then carried into Wilbarger county together, and at the same time. The original thefts were not one transaction, the cattle being taken at different times and places. But as they were carried into Wilbarger county together, by one act, counsel for appellant contend that, having been convicted once for this act, he cannot legally be convicted again in Wilbarger county, and pleaded the first conviction as a bar to this prosecution. The contention of appellant is that at common law theft is committed in every county through which, or into which, the stolen property is taken, and that our statute is not merely for the purpose providing the rule of venue in cases of this kind, but is declaratory of the common law, and that the jurisdiction or venue in Wilbarger county is sustained upon the ground that, when appellant carried the cattle into Wilbarger county, he committed another theft, a fresh theft, distinct from that committed by him in the first taking. The decisions of this court support this theory, and if they be correct counsel's position is impregnable. Dixon v. State, 15 Tex. App. 480; Gage v. State, 22 Tex. App. 128, 2 S. W. Rep. 638. The ground upon which this theory is based is this: That as the right of property, as well as the right of possession, remained all the time in the owner, and as the possession of the thief is the possession of the owner, so long as the thief remains in possession of the property, every time he carries it into another county he commits a fresh theft. This doctrine is presented and discussed under three phases: (1) When the property is stolen in a foreign country and brought into a state; second, when stolen in one state, and carried into another; and, third, when stolen in a county, and carried into another county of the same state. In England if property be stolen in a foreign country, and is brought into her kingdom, her courts do not take jurisdiction of the offense. But, under the same state of facts, (without statute,) several states of this Union do. But the weight of authority is against the jurisdiction. Again, when property is stolen in one state of the Union, and taken into another, some of the states, in the absence of a statute, assume authority, try, convict, and punish the thief, holding that the states of the Union occupy the same relations to one another as do the counties in England....