McCullers v. State

• Decision Date: 19 November 1919
• Docket Number: (No. 5481.)
• Parties: McCULLERS v. STATE.
• Court: Texas Court of Criminal Appeals

216 S.W. 182

McCULLERS v. STATE.

(No. 5481.)

Court of Criminal Appeals of Texas.

November 19, 1919.

Appeal from Franklin County Court; W. R. Irby, Judge.

R. L. McCullers was convicted of unlawfully breaking, pulling down, and injuring the fence of another without owner's consent, and he appeals. Reversed and remanded.

Wilkinson & Davidson, of Mt. Vernon, for appellant.

Alvin M. Owsley, Asst. Atty. Gen., for the State.

MORROW, J.

It was charged that appellant did unlawfully "break, pull down, and injure the fence of C. C. Vaughn without the consent of the said C. C. Vaughn." On the subject of ownership and want of consent, two witnesses testified, one of these testifying that he saw the appellant break down the fence, and said "the fence belonged to Wright and Vaughn." As to who Wright and Vaughn were, and as to whether one of them was the C. C. Vaughn named in the pleading, the record is silent. C. C. Vaughn testified that he owned a pasture on White Oak creek, and that, "if the appellant tore down a fence belonging to him, it was not with his consent." It was essential that the proof show that C. C. Vaughn named in the pleading was the owner of the fence within the meaning of the statute, and to prove that the injury to the fence was not with his consent. We are of the opinion that this proof was not made. Whether C. C. Vaughn was the person or one of the persons named by the witness who described the fence as belonging to Wright and Vaughn is not shown; and, if it belonged to Wright and Vaughn, the record should disclose which was in possession. Frazier v. State, 18 Tex. App. 442.

Article 457, C. C. P., contains the following:

"Where one person owns the property, and another person has the possession, charge, or control of the same, the ownership thereof may be alleged to be in either. Where property is owned in common, or jointly, by two or more persons, the ownership may be alleged to be in all or either of them."

Speaking on this subject, Presiding Judge White, in Frazier's Case, expressed the following:

"With regard to the pleading in theft, it is expressly provided that `where one person owns the property, and another person has the possession, charge or (and) control of the same, the ownership thereof may be alleged to be in either.' Code Crim. Proc. art. 426. It `may be alleged to be in either,' that is, it may and in most instances should only be alleged to be in one, and that one should be the one having the actual charge,...