Lane v. State

• Decision Date: 28 February 1900
• Citation: 55 S.W. 831
• Parties: LANE v. STATE.
• Court: Texas Court of Criminal Appeals

Page 831

55 S.W. 831

LANE v. STATE.

Court of Criminal Appeals of Texas.

February 28, 1900.

Appeal from district court, Van Zandt county; J. G. Russell, Judge.

Giles Lane was convicted of cattle theft, and he appeals. Affirmed.

Dave W. Wilcox and Robt. A. John, Asst. Atty. Gen., for the State.

DAVIDSON, P. J.

Appellant was convicted of cattle theft.

While the witness Ward was on the stand, he was asked this question: "Did you point out to the witness Dick Downing the yearling carried away by him, and did you assist him in penning and roping said yearling?" This was objected to because no authority had been shown from defendant to said witness to point out and deliver said yearling for him (defendant), and that, in the absence of such authority, defendant would not be bound by such acts of said witness, and that such testimony was calculated to prejudice the rights of defendant, and, further, in the absence of such authority such testimony would be irrelevant. The witness answered that he did go upon the range with Downing, and point out the yearling, and assist him to drive it to a pen, as well as rope it for Downing, who carried it away. This evidence was admissible. It is shown beyond controversy that defendant sold Downing a certain bull yearling, which he described, and told Downing at the time that the witness Ward would point out the yearling to him. In pursuance of this, Downing went to Ward, who pointed out the yearling; and Downing did, as stated, assisted by Ward, drive up and carry the yearling away. This justified the introduction of this testimony.

Bills of exception were reserved to paragraphs 4, 5, 10, and 11 of the charge, because said paragraphs do not state the law correctly, and, further, because the charge does not contain the law applicable to a voluntary return of stolen property. There is no evidence calling for a charge on voluntary return of stolen property. Appellant sold the animal to Downing, and sent him to Ward for the purpose of having the animal pointed out. It was pointed out by Ward, and by Downing carried away. This animal was the property of Gay, the alleged owner, who afterwards recovered it from Downing. There is no evidence, so far as this part of the case is concerned, showing that appellant was in possession of the animal after Downing obtained the possession. There is not a single element of voluntary return made by the facts. Those portions of the charge which refer to the constructive taking by appel...