Oakley v. State, 24131.

• Decision Date: 27 October 1948
• Docket Number: No. 24131.,24131.
• Parties: OAKLEY v. STATE.
• Court: Texas Court of Criminal Appeals

Page 298

214 S.W.2d 298

OAKLEY v. STATE.

No. 24131.

Court of Criminal Appeals of Texas.

October 27, 1948.

Commissioners' Decision.

Appeal from District Court, Childress County; Luther Gribble, Judge.

Jum Oakley was convicted of theft of cattle, and he appeals.

Affirmed.

E. T. Miller, Simpson, Clayton & Fullingim, all of Amarillo, for appellant.

Leonard King, Dist. Atty., of Childress, Hamilton & Deaver, of Memphis (Special Prosecutors) and Ernest S. Goens, State's Atty., of Austin for the State.

KRUEGER, Judge.

The offense is theft of cattle. The punishment assessed is confinement in the state penitentiary for a term of six years.

Appellant contends that the evidence is insufficient to sustain his conviction. The record reflects that Charles C. Allen at the time of the commission of the alleged offense lived with his parents on the Browder Ranch which was adjacent to the I. C. Little Sr., Ranch, of which Bob Goff was in charge. The fence between the two ranches was in a bad condition and at times cattle would wander from the Little Ranch into the Browder Ranch. On the 28th day of March 1947, Charles C. Allen saw appellant in the town of Memphis at which time they agreed to steal some of the Little cattle which had gotten into the Browder pasture. Appellant procured a saddle, a saw, and some canvas and ducking sacks and then they proceeded to the Browder Ranch in appellant's automobile. Upon their arrival at the ranch, appellant drove the car up to the barn while Allen went into the house and got a .22 caliber rifle. They then caught two horses and put the saddle which appellant had brought from Memphis on one horse and Allen put his father's saddle on the other. Appellant drove his car a distance of about seven or eight miles from the barn into the pasture near a creek, while Allen rode one horse and led the other. When they got to the creek, Allen saw two cows belonging to I. C. Little, Sr. He drove them near the car where he shot one and killed it; they dressed it and then Allen shot the other animal which was also dressed on the spot where it was killed.

They used a saw in cutting off the lower part of the legs, and in doing so the bone on one leg was split leaving a small sliver on the shank. They took the beef to the car on the horses and placed it in the rear part of the car, covering it with canvas and some ducking sacks. They then went to appellant's home where they spent the night and the next day they took the beef to Borger where appellant sold it to one O. E. Chaney who owned a meat market. After they had disposed of the meat and had started on their trip home they were arrested at Clarendon, carried back to Borger, and placed in jail. Charles C. Allen told the officers where they had killed the cattle and obtained the meat. He accompanied the officers to the place where the animals were slaughtered and dressed. The officers found two fresh hides with the brand "I. C." on each. They also found human tracks, one of which was made by a person wearing shoes and the other by a person wearing boots. At the home of appellant they saw a saddle with blood on it; and they asked appellant's former wife for permission to take the saddle which she readily gave. The officers, upon examination of the meat at Chaney's market, found a sliver on one of the shanks. They cut the shank off, took it to where the animals were dressed and fitted it to one of the legs and it fitted perfectly.

Appellant did not testify or offer any affirmative defense. At the close of the evidence, he made a motion for a peremptory instruction to the jury to acquit him. He based his motion on several grounds, first, that the evidence was insufficient to justify his conviction because the accomplice was not corroborated. We cannot agree with this contention for the following reasons: (a) he was found in possession of the carcasses of recently stolen cattle. (b) there was blood on his saddle which corroborated Allen that appellant carried some of the meat from the stolen cattle on horseback to the automobile. (c) there was evidence that two persons participated in the theft of the cattle, all of which corroborated Allen, the accomplice.

His next contention is that there is a variance between the allegations in the indictment and the proof, in this, that it was charged in the indictment that Bob Goff was the special owner of the cattle in question, whereas the uncontroverted evidence shows that the cattle were in the Browder Ranch and, therefore, not under the control of Bob Goff as charged. We see no merit in his contention. There is no question that the cattle belonged to I. C. Little, Sr., but the care, custody, control, and management thereof was in Bob Goff notwithstanding they had wandered into the Browder pasture. It appears to be well settled that the wanderings of animals do not affect their possession, since they cannot stray from the possession of one person into the possession of another and thus change their ownership. See 2 Tex.Jur., page 869, Sec. 120. See also Taylor v. State, Tex.Cr.App., 75 S.W. 35; Denton v. State, Tex.Cr.App., 69 S.W. 142; and De Ford v. State, 143 Tex.Cr.R. 618, 160 S.W.2d 251.

Appellant next claims that since I. C. Little, Sr., was the actual owner of the cattle, it was encumbent on the state to prove his want of consent to the taking of the cattle, and having failed to do so, he was entitled to an instruction to the jury to acquit him. He cites us to the case of Winn v. State, 138 Tex.Cr. R. 202, 135 S.W. 2d 118, as sustaining his contention. In that case it was charged in the indictment that Joe C. Trammel was the owner of the sheep and in possession thereof at the time of the theft, but the proof was that his father, J. A. Trammel, had the care, custody, control, and the management thereof. This, of course, constituted a variance between the allegations and proof. In the instant case we have a different state of facts. Here it was charged that Bob Goff was the owner and had the actual care, control, management, and possession of the cattle in question and the proof corresponds with the allegations. If the appellant had the consent of I. C. Little, Sr., the actual owner, the duty rested upon him to show it since it was a defensive matter. The authorities cited by appellant under his propositions have no application here.

Appellant addressed a number of objections to the court's charge. He claims that the court erred in not instructing the jury on the law of circumstantial evidence since the state relied for a conviction, at least in part, upon circumstantial evidence. It is well settled in this state that unless the state's case depends entirely upon circumstantial evidence there is not any need for an instruction on the subject. See Martinez v. State, 61 Tex.Cr.R. 29, 133 S.W. 881; Rios v. State, Tex.Cr.App. 48 S.W. 505; and Wampler v. State, 28 Tex.App. 352, 13 S.W. 144. In the instant case the state made a complete case against appellant by the testimony of the accomplice, and his testimony was sufficiently corroborated by circumstances.

His next complaint relates to the court's action in declining to instruct the jury that the defendant was not required to testify in his own behalf and they should not consider for any purpose his failure to do so. In the case of Pounds v. State, 142 Tex.Cr.R. 52, 150 S.W.2d 798, this court held that such a charge was not required to be given, citing Branch's Penal Code, page 211, Sec. 377, where many authorities are cited.

Appellant also objected to the court's charge wherein the court charged that if the jury believed from the evidence, beyond a reasonable doubt, that Bob Goff had possession of the cattle in question, and that thereafter without his knowledge they strayed from the I. C. Little, Sr., Ranch onto the Browder Ranch, then the said Bob Goff had possession of said cattle at the time they were taken. The court, in paragraph 5 of his charge, gave a correct definition of "possession," and in compliance with the mandatory provision of the law, made an application of the law to the facts of the case.

Bills of Exception Nos. 3 and 4 are in question and answer form without any certificate by the trial court that it was necessary that they be in such form for better understanding by this court of the matters therein complained of. This court has many times held that a bill of exception in...