Minter v. State

• Decision Date: 24 October 1888
• Court: Texas Court of Appeals
• Parties: MINTER <I>v.</I> STATE.

Page 561

9 S.W. 561

MINTER

v. STATE.

Court of Appeals of Texas.

October 24, 1888.

Appeal from Morris county court; D. M. RODES, Judge.

Pratt Minter, the defendant, was convicted of the theft of a hog. From the judgment he appeals.

J. M. Powers, for appellant. Asst. Atty. Gen. Davidson and Moore & Hart, for the State.

WILLSON, J.

This is a conviction for the theft of a hog. Considering the evidence in the most favorable light for the state, it shows that defendant shot and wounded the hog, and pursued it some distance, but did not kill or catch it. The hog was found by its owner lying in a branch, alive, but badly wounded. He drove it home, and killed it, and used the meat.

It is clear from the evidence that the defendant never had actual, manual possession of the hog, and never converted it to his own use. To constitute theft there must be a fraudulent taking of the property, and while there may be a taking of the property without actual, manual possession of it, still the property must in some manner have come into the possession of the party accused of the theft, either actually or constructively, or he cannot be said to have taken it. It has been held that killing an animal constitutes a taking of it. Hall v. State, 41 Tex. 287; Coombes v. State, 17 Tex. App. 258. Where a party called up to him gentle hogs on the range, and sold them to another person who was present, it was held that the seller's acts constituted a taking, because he exercised control over the hogs by calling them up and had them constructively in his possession, and converted them to his own use by constructively delivering them to the purchaser, who thereafter took actual possession of them. Madison v. State, 16 Tex. App. 435. So, when a cow was pointed out on her range, sold, and constructively delivered to the purchaser, it was held to be a taking by the seller. Doss v. State, 21 Tex. App. 505, 2 S. W. Rep. 814. It will be observed that in all of these cases there was a constructive possession of the property by the accused, and a constructive interruption of the possession of the owner of the property. In all these cases, the accused, for the time being, either in person or by an innocent agent, had the actual control of the property; had it under his actual dominion; with the power to take it into his actual, manual possession. We have found no authority which holds that mere wounding of an animal upon its range, and the pursuit of it without capturing it, without...