Houston v. State

• Decision Date: 11 June 1924
• Docket Number: (No. 8496.)
• Citation: 265 S.W. 585
• Parties: HOUSTON v. STATE.
• Court: Texas Court of Criminal Appeals

265 S.W. 585

HOUSTON v. STATE.

(No. 8496.)

Court of Criminal Appeals of Texas.

June 11, 1924.

Rehearing Denied November 5, 1924.

Appeal from District Court, Nacogdoches County; L. D. Guinn, Judge.

V. V. Houston was convicted of theft, and he appeals. Affirmed.

V. E. Middlebrook, of Nacogdoches, for appellant.

Tom Garrard, State's Atty., and Grover C. Morris, Asst. State's Atty., both of Austin, for the State.

LATTIMORE, J.

Appellant was convicted in the district court of Nacogdoches county of theft, and his punishment fixed at two years in the penitentiary.

A bale of cotton weighing 610 pounds and of the value of more than $50 was in the cotton yard of Windham et al. A sample of same and the ticket containing the number, weight, and owner's name were in the office. Appellant was about the premises, and one of the proprietors suggested to a witness to watch appellant. This witness testified that he saw appellant take a certain sample, put it under his coat, and walk out. The next day appellant went to witness Brown and, by means of his possession of the ticket and sample, sold Brown the bale of cotton called for by the ticket for $118.45. Brown gave appellant a check for that amount in payment for the cotton, and had same removed from the cotton yard and shipped away. Thrash, the real owner of the bale of cotton, discovered its loss, and the matter was traced to appellant. He at first denied having sold the cotton, but when confronted by Brown and the check given, he could no longer deny it, but made arrangements to reimburse the loss.

Our statute on principals, article 77, P. C., makes one a principal who causes an innocent agent to commit a crime, and many authorities are cited by Mr. Branch in section 683 of his Annotated P. C., in support of this proposition. Cases applying the doctrine to one who sells the property of another, who later removes the property so sold from the possession of the owner, are numerous and harmonious. Farris v. State, 55 Tex. Cr. R. 481, 117 S. W. 798, 131 Am. St. Rep. 824; Walls v. State, 43 Tex. Cr. R. 70, 63 S. W. 328; Lane v. State, 41 Tex. Cr. R. 559, 55 S. W. 831; Sikes v. State (Tex. Cr. App.) 28 S. W. 688; Dale v. State, 32 Tex. Cr. R. 78, 22 S. W. 49; Doss v. State, 21 Tex. App. 509, 2 S. W. 814, 57 Am. Rep. 618; Madison v. State, 16 Tex. App. 442. The facts in the instant case seem to fully support the proposition that, by appellant's sale of the cotton to Brown, the latter was caused to remove and appropriate to his own use the bale of cotton involved, and this meets the requirements of the law as announced in the cases cited, and makes appellant the taker of said cotton. It follows that we do not agree with appellant's contention that the proof makes a case different from that set out in the indictment.

An indictment charging theft of one bale of cotton of a certain value, and alleging the ownership thereof, is not open to the objection that it does not sufficiently describe the property taken. Article 458, Vernon's C. C. P., and authorities collated.

The property being in the care, control, and management of a partnership composed of Windham and others, it was sufficient to allege ownership in Windham. Article 457, Vernon's C. C. P., and authorities. Possession and taking of the cotton ticket being a necessary part of the development of the transaction by which Mr. Brown was induced by appellant to remove the cotton from the yard, it was not error for the state to prove by Windham that appellant told him that he (appellant) took said ticket from the office.

We have carefully examined the various special charges requested by appellant, and think them not called for by the facts, or else to be so little at variance with the law, as stated in the main charge of the court, as that their refusal was not error. Nor do we find any of the parts of the court's charge as given open to the exceptions set out in several bills of exception by appellant. Nor are we able to agree with appellant in his complaint of the court giving the jury forms for their verdict in case of acquittal or conviction.

After the jury retired they sent in a written request to the learned trial court to know if they might give appellant a suspended sentence, to which he replied in writing in the negative. This was proper. No plea for suspended sentence was filed, and no evidence introduced on the issues made available under such application. Speer v. State, 75 Tex. Cr. R. 348, 171 S. W. 201; Muldrew v. State, 73 Tex. Cr. R. 463, 166 S. W. 156; Lozano v. State, 83 Tex. Cr. R. 597, 204 S. W. 323.

Finding no error in the record, an affirmance will be ordered.

On Motion for Rehearing.

In an original and supplemental motion for rehearing, appellant, through his distinguished counsel, renews substantially the same propositions presented when the case was first before us. We may not have made ourselves clear in our former opinion.

The charge in the indictment was theft of a bale of cotton of the value of $131.41. There is no allegation of the weight of the cotton, and insistence that a variance in proof on this point existed is plainly in error. The undisputed testimony showed that on the 6th of October the bale of cotton in question was weighed by Mullins & Windham Bros., a firm of public weighers; the cotton belonging to J. B. Thrash. A sample of the cotton and a ticket showing its certified weight to be 610 pounds, and the number of the bale to be 8654, were placed in the office of said firm, and the bale of cotton was placed in their yard. On the 7th of said month it is shown by the testimony that the appellant took from said office the ticket and sample mentioned, and that he went to one Brown, and, by reason of his possession of the ticket and sample, and apparently upon Brown's belief that he was Thrash, the owner of the cotton, he sold to Brown said bale of cotton for $118. That same day or the next day Brown ordered said bale of cotton sent to the compress, and this was done, but whether by Brown's conveyance or some other means furnished by Brown or the ginners is not made clear from the record, nor do we think it material. At all events the cotton was appropriated by Brown believing that he had purchased it from Thrash, the owner. Subsequently Mr. Thrash went to the ginners and got a ticket for said cotton, which he sold for $131.41, cotton having advanced in price. Appellant insists that his client only took the ticket and sample from the possession of the owner, Windham, and that the proof goes no further than this, and that therefore there was such variance between the allegation in the indictment and the proof as would forbid legal conviction.

As we view the case it might be conceded that appellant did take the ticket and sample, but he used them to induce an innocent agent or agents to remove the bale of cotton from the care, control, and management of Windham, the temporary owner, and, the prosecutor having seen fit to charge him with the taking of the bale of cotton and not with taking the ticket and sample, and the proof appearing to make out a case of taking the bale of cotton as well as the ticket and sample, we are not able to see our way clear to hold that the proof and the charge in the indictment are at variance. In our original opinion we cited a section of Mr. Branch's Annotated P. C., and some of the authorities mentioned therein in support of our contention that the appellant, having employed an innocent agent to take into his possession and remove from the care, custody, and control of the owner the property in question, was a principal offender under the terms of article 77 of our Penal Code. Appellant now insists that the cases cited do not support the proposition, and have no application to this case. We have again examined the authorities. In Doss v. State, 21...