Key v. State

• Decision Date: 14 April 1897
• Citation: 40 S.W. 296
• Parties: KEY v. STATE.
• Court: Texas Court of Criminal Appeals

40 S.W. 296

KEY v. STATE.

Court of Criminal Appeals of Texas.

April 14, 1897.

Appeal from district court, Johnson county; J. M. Hall, Judge.

John H. Key was convicted of theft, and appeals. Affirmed.

Ramsey & Brown, for appellant. Mann Trice, for the State.

HENDERSON, J.

Appellant was convicted of the theft of a head of cattle, and his punishment assessed at two years in the penitentiary; hence this appeal.

There are no bills of exception in the record. There are two counts in the indictment, one of which charges the property and possession to have been in O. R. Cole, and the second count charges the property and possession to have been in O. R. Cole, holding the same for S. B. Capps. Appellant assigns as error that portion of the charge of the court which instructed the jury that if they believed from the evidence "that the defendant did fraudulently take * * * said head of cattle * * * without the consent of the said Capps, and without the consent of the said Cole, and without the consent of either one of them, * * * to find him guilty." Defendant insists that the instruction above quoted authorized the jury to convict defendant if he took said head of cattle without the consent of either the special or the general owner. If there was any question raised by the evidence as to the consent of either of said parties, then the contention of appellant might have some force; but the record shows emphatically and unequivocally, and it is not controverted, that both of these parties testified positively to their want of consent to the taking; and so, in our opinion, the cases cited by appellant on this point have no application.

Appellant also objects to the sixth paragraph of the charge of the court, which is as follows: "If you believe from the evidence that the defendant, when he discovered said cattle was crippled, fed and cared for said cattle until it had recovered of its injury, and that afterwards he sold the same for the purpose only of repaying himself for the trouble and expense, if any, that he had incurred by his attentions to said animal, and not with intention of depriving the owner of the value of said animal, and to appropriate it to his, defendant's, use, then you will acquit him, and so say. But if he fraudulently took said animal, as explained in the fourth paragraph in this charge, then he would be guilty as charged in the indictment, even if he had cared for and cured said animal, and was entitled to pay for said attention."...