McKenzie v. State

• Decision Date: 14 February 1894
• Citation: 25 S.W. 426
• Parties: McKENZIE v. STATE.
• Court: Texas Court of Criminal Appeals

25 S.W. 426

McKENZIE v. STATE.

Court of Criminal Appeals of Texas.

February 14, 1894.

Appeal from district court, Mitchell county; William Kennedy, Judge.

J. M. McKenzie was convicted of theft, and appeals. Reversed.

Cowan & Fisher, Smallwood & Smith, and Carter & Lewright, for appellant. Ball & Burney, S. H. Cowan, and R. L. Henry, Asst. Atty. Gen., for the State.

HURT, P. J.

Conviction for theft of one "cattle," the alleged property of Cochran. The indictment was obtained in Martin county. The case was by the court, of its own motion, transferred to Mitchell county.

The first count in the indictment alleges that the property (cow) was by appellant stolen in the territory of New Mexico, and was afterwards brought by him into this state, and that, at the time of the presentment of the indictment, he was in Martin county. The second count is the same as the first, except that it charges that the defendant brought the cow into Terry county, and that it was unorganized, and was attached to Martin county. The third count charged that the theft was committed in Terry county, and that it was unorganized, and attached to Martin county. The fourth count alleges the theft in Andrews county, and that this was an unorganized county, and attached to Martin county. The first two counts declare upon the same transaction, differing only in regard to matter of venue. The third count declares, apparently, upon a distinct transaction from those designated in the first and second. The fourth, upon its face, declares upon a transaction separate and distinct from the first, second, and third. We have in this indictment three distinct felonies apparently charged against appellant. If the animal was in fact stolen in New Mexico, it was not stolen in Terry county; and, if stolen in Terry county, it was not taken in Andrews county. This pleading, however, is correct. In the same indictment, there can be no such joinder of felonies as includes separate transactions in fact. Bish. Cr. Proc. § 448. What relation the accused bears to a certain supposed criminal transaction may frequently be shrouded in doubt. Was he a principal, accomplice, or a receiver, in the transaction? Under such a state of case, counts for each are permissible, yea, commendable practice. And if there be doubt as to whether the property was taken beyond this state, or in an attached county, the indictment should allege both. When, upon the trial, distinct transactions are developed, at the request of the defendant the state should be forced to elect upon which count or transaction it will prosecute. Such a request was not made in this case. We have mentioned this subject solely for the purpose of preventing mistakes in the future.

Two counts charge theft of the animal in New Mexico, and that the property was brought by appellant into this state, and that, at the time this bill was presented, appellant was in Martin county; the other, that the property was brought by him into Terry county, which was unorganized, and attached to Martin county for judicial purposes. Either of these counts is sufficient, and, if either be proven, appellant was properly indicted in Martin county. Counsel for appellant contend that this state has no authority to try and punish offenses committed beyond its jurisdiction, and that this offense was wholly committed in New Mexico, etc. Let us examine this proposition. This state has no jurisdiction to try and punish a party for theft committed by him beyond its boundaries. But is this the case before us? Articles 798 and 799, Pen. Code, define this offense: "If any person shall steal property beyond the boundaries of this state and the acts and intents constitute theft in the foreign country, state or territory under the laws thereof, and said acts and intents constitute theft under the laws of this state, shall bring said property into this state, he is liable to the same punishment as if the theft had been committed wholly within this state." What are the ingredients of this offense? First, the acts and intents must constitute theft by the law of the country in which the property was taken; second, such act and intents must constitute theft under the laws of this state; third, the thief must bring the stolen property into this state. This state does not propose to punish the party for theft committed beyond its borders, but proposes to punish him for stealing the property beyond its boundaries and bringing his plunder into this state. This is not only authorized by articles 798 and 799, Pen. Code, but also by article 205, Code Cr. Proc., which provides: "Prosecutions for offenses committed wholly or in part without and made punishable by law within this state may be commenced and carried on in any county in which the offender is found." This prosecution was commenced, by indictment, in Martin county, the county in which appellant was found. This was correct practice, because this offense was committed in part without this state, and consummated in this state by the appellant bringing the stolen property into this state, — that is, this is the theory of the state, — and if, in fact, appellant did these things, Texas would have the right to try and punish him therefor, and the procedure under the first and second counts is correct. If guilty, appellant could not be punished for theft in New Mexico, but for the theft and the act of bringing the plunder into this state.

By bill of exceptions, it appears that Carrington, witness for the state, testified that he was in control and had the management of a herd of cattle in New Mexico, branded with a mallet; that he never gave his consent to the defendant to kill such an...