Morrow v. State
| Decision Date | 13 November 1886 |
| Parties | MORROW <I>v.</I> STATE.<SMALL><SUP>1</SUP></SMALL> |
| Court | Texas Court of Appeals |
The indictment in this case was presented in Palo Pinto county, Texas, and it impleaded the defendant and one H. C. McDonnell for the theft of one head of cattle, the property of J. A. Lee, in Palo Pinto county, Texas, on the sixteenth day of May, 1883. A severance and a change of venue to Parker county were awarded the defendant, and his conviction in the latter county was supplemented with a term of two years in the penitentiary. The facts upon which the rulings of this court are predicated are sufficiently stated in the opinion.
McCall & McCall, for appellant, filed an able brief, maintaining as propositions the doctrines announced in the opinion, except that involved in the fourth head-note, which was controverted.
Asst. Atty. Gen. Burts, for the State.
The indictment alleges that John A. Lee owned the animal charged to have been stolen by the defendant. Lee testified that he was a stockholder in, and the general manager of, the Kentucky Land & Cattle Company, a corporation organized under the laws of the state of Kentucky, and that he had exclusive care, control, and management of all the cattle of said company in the state of Texas. He stated that he knew nothing about the particular animal mentioned in the indictment, and did not know that it belonged to the said company. The prosecution undertook to prove ownership of said animal to be in said company (1) by a bill of sale from Curtis, Atkinson & Lazarus to the Louisville Land & Cattle Company, conveying about 4,500 head of cattle, ranging in King and Palo Pinto counties, in various marks and brands, among said brands the one with which the animal in controversy was branded, to-wit, "TOAD." This bill of sale was dated February 23, 1883; acknowledged for record, September 21, 1885; and recorded in Palo Pinto county, September 16, 1885, before it had been authenticated for record. (2) A bill of sale from Baylor & Lanham to Sam Lazarus, conveying the said vendors' entire stock of cattle, branded "TOAD," dated August 15, 1882; acknowledged August 18, 1882; recorded in Palo Pinto county, September 4, 1883. (3) Record of the mark and brand of W. K. Baylor and T. G. Kirbie, said brand being the said "TOAD" brand, recorded in Palo Pinto county, September 27, 1880; said W. K. Baylor being the same Baylor who joined with Lanham in conveying said brand to Lazarus.
This testimony was all admitted over the objections of the defendant. An objection made to the first bill of sale was that it had not been filed in the cause three days before the trial, and notice of such filing given to defendant, and that its execution was not properly proved. A bill of sale is an instrument of writing which is permitted and required by law to be recorded in the office of the clerk of the county court. Rev. St. arts. 4331, 4564. It is such an instrument, therefore, as comes within the provision of article 2257, Rev. St., and may be read in evidence without proof of its execution, provided it has been filed among the papers of the cause at least three days before the commencement of the trial, and notice of such filing given to the opposite party, or his attorney.
In this case the bill of sale was not filed, and notice of such filing given to the defendant or his attorney, so as to render the same admissible without proof of its execution. Allison v. State, 14 Tex. App. 402. But the state proved the execution of said bill of sale by the witness Lee, who testified that he was present when the same was executed, and saw it signed by the vendors. This testimony was objected to by the defendant at the time it was offered, because it was secondary; the bill of sale showing upon its face that its execution was witnessed by one Robert McCart, who signed the same as a subscribing witness, and the state had shown no reason why the testimony of said subscribing witness was not produced. It seems from the authorities that defendant's objection should have been sustained. Sample v. Irwin, 45 Tex. 567; Craddock v. Merrill, 2 Tex. 494; White v. Holliday, 20 Tex. 679; 1 Greenl. Ev. §§ 572, 574.
Other objections made to this bill of sale as evidence are not, in our opinion, tenable. An unacknowledged, unrecorded bill of sale of property, while it might not, under the law, vest the legal title in the vendee, would be evidence, in a prosecution for theft of such property, to prove such ownership in said property as the law in such case recognizes as sufficient. It is only necessary, in a prosecution for theft of property, to prove that the alleged owner of the same had the possession, charge, or control thereof. Such possession, charge, and control constitute...
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