Hays v. State
Decision Date | 11 January 1922 |
Docket Number | (No. 6583.) |
Citation | 236 S.W. 482 |
Parties | HAYS v. STATE. |
Court | Texas 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.
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:
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State v. Myers
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Osborne v. State, (No. 6649.)
...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......