McKenzie v. State

• Decision Date: 23 October 1895
• Citation: 32 S.W. 543
• Parties: McKENZIE v. STATE.
• Court: Texas Court of Criminal Appeals

32 S.W. 543

McKENZIE v. STATE.

Court of Criminal Appeals of Texas.

October 23, 1895.

Appeal from district court, Lampasas county; W. A. Blackburn, Judge.

Charles McKenzie was convicted of stealing horses, and appeals. Reversed.

Matthews & Browning, for appellant.

Mann Trice, Asst. Atty. Gen., for the State.

HENDERSON, J.

The appellant in this case was tried and convicted in the court below on a charge of horse theft, and his punishment assessed at five years' confinement in the penitentiary. From the judgment of the lower court he prosecutes this appeal.

Several errors are assigned, but there are but two that require any consideration by us. The statement of facts shows that one Robert Warren testified for the state, and the appellant claims that he was an accomplice, and that the court failed to instruct the jury on the testimony of an accomplice. The record in this case shows that appellant suggested to the witness Robert Warren to engage with him in stealing horses (certain stray horses being named) in Lampasas county, and to carry them into Williamson county for sale, and that the said witness Warren agreed to the scheme, so far as the record discloses, without any reservation at the time. It appears that he had several conversations with appellant about their plans, and they finally agreed on a day to take two certain horses into possession, and carry them off and sell them. On the day agreed on they penned two horses that were known as estrays in the pen of one Beardon. They succeeded in roping the two horses, but the sorrel subsequently got away. The four year old bay they took and carried to a thicket about two miles from the house of witness, and about four miles from the house of defendant, and there tied it. The parties separated that evening with the understanding that they were to take the horse early next morning, and proceed with it to Williamson county. The witness Warren, it appears, disclosed to one George Littlefield, several days before the taking, the whole scheme, and on the night after the taking he went to said Littlefield's. He then told Littlefield where the horse was secreted, and on the same night he went with Littlefield and the two Mitchells, and showed them the place of its concealment. The next day, about 12 o'clock, the witness Warren and the defendant went to where the horse was, and untied him, and proceeded with him towards Williamson county. Shortly after, they were intercepted, and the defendant arrested...