Johnson v. State
| Decision Date | 20 March 1895 |
| Citation | 30 S.W. 228 |
| Parties | JOHNSON v. STATE. |
| Court | Texas Court of Criminal Appeals |
Appeal from district court, Robertson county; W. G. Taliaferro, Judge.
Lorenzo Johnson was convicted of theft, and appeals. Reversed.
J. D. Gann and Simmons & Crawford, for appellant. Mann Trice, for the State.
The appellant in the above case was tried at the January term of the district court of Robertson county under an indictment charging him with theft of two bales of cotton, and was found guilty by the jury, and his punishment assessed at two years in the penitentiary; and from the judgment and sentence of the lower court he prosecutes this appeal. The appellant, a boy about 17 years of age, carried four or five bales of cotton to the town of Calvert, and deposited same with the agent of the wharf company. Four bales of the cotton were deposited in the name of defendant's father, Jack Johnson, and one bale in his (defendant's) own name. Subsequently, on the same day, defendant went to Wilder, the agent of the wharf company, and procured receipts and samples of two of the bales, and with these he made sale of said two bales to one Schwartz, a cotton buyer, receiving therefor a check on a local bank for $42. If it be conceded that the defendant had parted with the possession of the cotton in such manner that he could not afterwards rightfully resume possession thereof, then we fail to see such a taking into possession in the case as would constitute the appellant guilty of theft, if the other elements of the alleged crime were present. There is no evidence in the record that he ever afterwards came into actual possession of any of the cotton, except the two samples, and these were given him by Wilder; and the record fails to disclose that even Schwartz ever came into actual possession of the two bales of cotton. This method of dealing with cotton and selling same may be a usage of trade, and may constitute one a constructive possessor; but, in our opinion, the facts did not show that the appellant, in what he did, made such a taking of the cotton as is required before he can be prosecuted for theft of same.
The appellant in this case appears to have been convicted of theft of cotton from his father, Jack Johnson, and in such case the want of consent of the alleged owner, where it becomes a material question in the case, must be made to appear beyond any reasonable doubt. Yet the record fails to show in a satisfactory manner this want of consent. H...
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Alexander v. State
...App. 370, 9 S. W. 738; Taylor v. State, 27 Tex. App. 463, 11 S. W. 462; Hayes v. State, 30 Tex. App. 407, 17 S. W. 940; Johnson v. State, 34 Tex. Cr. R. 254, 30 S. W. 228; Watt v. State, 61 Tex. Cr. R. 662, 136 S. W. 56; Branch's Ann. Tex. P. C. § 2426; Newman v. State, 113 Tex. Cr. R. 517,......
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Kitchen v. State, 14842.
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