Melton v. State
| Decision Date | 07 March 1900 |
| Citation | 56 S.W. 67 |
| Parties | MELTON v. STATE. |
| Court | Texas Court of Criminal Appeals |
Appeal from district court, Wichita county; A. H. Carrigan, Judge.
J. D. Melton was convicted of cattle theft, and he appeals. Reversed.
L. H. Mathis, Fires & Decker, and Abernathy & Beverly, for appellant. Robt. A. John, Asst. Atty. Gen., for the State.
Appellant was convicted of theft of one head of cattle, and his punishment assessed at a term of two years in the penitentiary, and he prosecutes this appeal.
The indictment contains four counts, but the conviction was under the first count, which charges that "the animal was the property of some person who is to the grand jury unknown," etc. It is contended by appellant that this charge is not tantamount to an allegation that the name of the owner is to the grand jury unknown. We do not believe this objection is well taken. It follows as a matter of course, if the owner was to the grand jury unknown, that his name was equally unknown to the grand jury. State v. Snow, 41 Tex. 596; Culberson v. State, 2 Tex. App. 324; and see authorities cited in White's Pen. Code, § 1482, subd. 3.
It is also contended that the indictment should have alleged that the grand jury used diligence to ascertain the owner, because this fact must be proven at the trial. We think the allegation that the owner was unknown to the grand jury was a sufficient charge to admit proof that they made inquiry to ascertain the owner.
Appellant assigns as error the action of the court refusing to give certain requested special instructions, the first special instruction being as follows: The second and third requested instructions are on the same subject. It occurs to us, under the peculiar facts of this case, that these requested instructions should have been given. The difficulty all along seems to be failure of the state to identify some particular animal, and to prove that such animal belonged to some unknown owner. No witness proved the loss of an animal in that section which belonged to an unknown owner. Indeed, the testimony shows that there...
To continue reading
Request your trial
-
Downs v. State
...41 Tex. Cr. R. 225, 53 S. W. 637; Varas v. State, 41 Tex. 527; Henry v. State, 9 Tex. App. 358; Cameron v. State, 9 Tex. App. 332; Melton v. State, 56 S. W. 67; Coleman v. State, 55 S. W. 836; James v. State, 32 Tex. Cr. R. 511, 24 S. W. 642; Fruger v. State, 63 S. W. The failure of the cou......
-
Elliott v. People, 15650.
... ... of the larceny of a yearling calf, owner unknown, and ... sentenced to the state penitentiary for a term of three to ... six years. To review that judgment he prosecutes this writ ... and assigns as error, inter alia, the giving ... some unknown owner, and this was the animal alleged to have ... been stolen, as was the condition in Melton's Case ... [Melton v. State], Tex.Cr.App., 56 S.W. 67, or whether ... the animal shown to have been stolen was not previously known ... in the ... ...
-
Kuykendall v. State
...error. The judgment will be affirmed. HAWKINS, J., absent. On Motion for Rehearing. MORROW, P. J. Appellant relies on Melton v. State (Tex. Cr. App.) 56 S. W. 67, Dawson v. State (Tex. Cr. App.) 61 S. W. 489, and Clements v. State, 43 Tex. Cr. R. 400, 66 S. W. 301, 303, as holding that to s......
-
Reimer v. State
...jury, and we are further of opinion that the evidence is not sufficient to show a fraudulent intent. Lane v. State, 45 S. W. 693; Melton v. State, 56 S. W. 67; Heskew v. State, 18 Tex. App. 275; Miles v. State, 1 Tex. App. 513; Cameron v. State, 9 Tex. App. 332; Moore v. State, 28 Tex. App.......