Hays v. State

Decision Date11 January 1922
Docket Number(No. 6583.)
Citation236 S.W. 482
PartiesHAYS v. STATE.
CourtTexas Court of Criminal Appeals

Appeal from District Court, Matagorda County; M. S. Munson, Judge.

Frank Hays, alias Amos Hays, was convicted for theft of cattle, and he appeals. Reversed and remanded.

Styles, Krause & Erickson, of Bay City, for appellant.

R. G. Storey, Asst. Atty. Gen., for the State.

HAWKINS, J.

Conviction is for theft of cattle. Punishment, two years in penitentiary. The indictment charges theft of one head of cattle from the possession of R. J. Sisk on or about October 8, 1920. In May, 1920, appellant was the owner of a cow which was not in his possession, but was under the actual care, control, and management of Will Thompson, running with the latter's cattle in his pasture and adjoining premises some 14 miles from where appellant was then living. Some time in May he sold this cow to Sisk for $20, $10 cash, the balance to be paid when the animal was delivered, appellant telling Sisk she was at Thompson's place. A bill of sale was executed and delivered to Sisk at this time. A few days later appellant told Sisk he had brought the cow from Thompson's place, and had her in a little pasture at Huebner's, where appellant was living. Sisk was invited by appellant to go there and see the animal, but declined, and paid the balance of the purchase price. Sisk, believing the cow was in the Huebner pasture, asked appellant if it would be all right to leave her there a little while and was told it would be. As a matter of fact, appellant had never moved the cow. She remained in Thompson's possession until some time in October, when appellant sold her to another party. Appellant went to Thompson's place without Thompson's knowledge or consent, and actually made delivery of her on the second sale. Sisk, the first purchaser, never saw the animal, and never had possession of her. In the fall of 1920 he began to make inquiries, and upon discovery of the subsequent sale this prosecution was instituted.

It is insisted that the conviction cannot stand, because the proof fails to support the allegations in the indictment. A number of special charges were requested on the issue of "possession," calling the trial judge's attention to appellant's contention, all of which were refused. We quote from Frazier v. State, 18 Tex. App. 442, as follows:

"* * * As the criterion in determining how ownership should be alleged, it should first be ascertained who was in `the exercise of actual...

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2 cases
  • State v. Myers
    • United States
    • United States State Supreme Court of Idaho
    • 4 d1 Dezembro d1 1922
    ...... . . It is. not error to admit in evidence other similar transactions of. defendant's co-conspirators. (16 C. J. 665, sec. 1327,. note 4; Howle v. State, 15 Ala. App. 185, 72 So. 759; State v. Flood, 148 Iowa 146, 127 N.W. 48;. Boyle v. United States, 257 F. 803; Hays v. State, 90 Tex. Cr. 192, 236 S.W. 482; People v. Schmidt,. 33 Cal.App. 426, 165 P. 555.). . . An. officer has the right at the time of making an arrest to. search the person of the party or the place where the party. is found for articles used in connection with or which may ......
  • Osborne v. State, (No. 6649.)
    • United States
    • Court of Appeals of Texas. Court of Criminal Appeals of Texas
    • 6 d3 Dezembro d3 1922
    ...White v. State, 24 Tex. App. 231, 5 S. W. 857, 5 Am. St. Rep. 879; Thurmond v. State, 30 Tex. App. 539, 17 S. W. 1098; Hays v. State, 90 Tex. Cr. R. 498, 236 S. W. 482; Guyon v. State, 89 Tex. Cr. R. 287, 230 S. W. By reason of our statutory definition of "theft" (article 1329, P. C.) embra......

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