Osborne v. State

• Citation: 245 S.W. 928
• Decision Date: 06 December 1922
• Docket Number: (No. 6649.)
• Parties: OSBORNE v. STATE.
• Court: Court of Appeals of Texas. Court of Criminal Appeals of Texas

245 S.W. 928

OSBORNE v. STATE.

(No. 6649.)

Court of Criminal Appeals of Texas.

December 6, 1922.

Appeal from District Court, Rusk County; Chas. L. Brachfield, Judge.

Herbert Osborne was convicted of theft, and he appeals. Reversed and remanded.

Futch & Tipps, J. W. McDavid, and R. T. Jones, all of Henderson, and Norman, Shook & Gibson, of Rusk, for appellant.

W. A. Keeling, Atty. Gen., and C. L. Stone, Asst. Atty. Gen., for the State.

MORROW, P. J.

Conviction is for theft; punishment fixed at confinement in the penitentiary for a period of two years.

The indictment contains this averment:

"* * * The same then and there being the corporeal personal property of and belonging to the Farmers' Warehouse Company, the said the Farmers' Warehouse Company, then and there being a corporation duly chartered and incorporated under the laws of the state of Texas, from the possession of Ed Mansinger and Homer Duran, who were holding the said four bales of lint cotton for the said the Farmers' Warehouse Company, without the consent of the said Ed Mansinger and the said Homer Duran or either of them, with the intent then and there to deprive the said the Farmers' Warehouse Company of the value thereof, etc."

The sufficiency of the indictment is assailed by the appellant upon the ground that it fails to negative the consent of the Farmers' Warehouse Company to the taking of the property.

In the instant case there was no motion in arrest of judgment made; but, if the fault be one of substance, it was available on appeal without the motion in arrest of judgment. Such a motion deals with matters of substance only. See Melley v. State (No. 7185) 247 S. W. ___, not yet reported; Code of Crim. Proc. art. 875. Such defects may be taken advantage of after judgment, either in the trial court or on appeal. White v. State, 1 Tex. App. 211; Holden v. State, 1 Tex. App. 234; Maddox v. State, 14 Tex. App. 447; Ryan v. State, 76 Tex. Cr. R. 510, 176 S. W. 49.

Where ownership is alleged in one person and possession in another, the want of consent of both ordinarily should be averred and proved. Bailey v. State, 18 Tex. App. 427; Frazier v. State, 18 Tex. App. 434; Atterberry v. State, 19 Tex. App. 401; Williams v. State, 19 Tex. App. 277; Johnson v. State, 34 Tex. Cr. R. 257, 30 S. W. 228. It is insisted, however, that under the averment in the indictment, the true owner being a corporation, the law touching the averment of want of consent was satisfied by the averment reading thus:

"* * * From the possession of Ed Mansinger and Homer Duran, who were holding the said four bales of lint cotton for the said the Farmers' Warehouse Company, without the consent of the said Ed Mansinger and the said Homer Duran or either of them, etc."

Supporting this proposition, reference is made by the state's counsel to White v. State, 24 Tex. App. 231, 5 S. W. 857, 5 Am. St. Rep. 879; Thurmond v. State, 30 Tex. App. 539, 17 S. W. 1098; Hays v. State, 90 Tex. Cr. R. 498, 236 S. W. 482; Guyon v. State, 89 Tex. Cr. R. 287, 230 S. W. 408.

By reason of our statutory definition of "theft" (article 1329, P. C.) embracing "ownership" and "possession," the construction thereof has often received the attention of our court. The most comprehensive general discussion, we think, is found in Frazier's Case, 18 Tex. App. 434. We quote therefrom, italicizing that portion which as special application to the question before us:

"With regard to property which may be the subject of theft, there is provided, under the statute, two kinds of ownership, viz. (1) a general, and (2) a special ownership, both of which depend upon `possession' alone so far as this offense is concerned. We will also see as we proceed that really `ownership' means nothing more than `possession,' and that ownership and possession are but synonymous or convertible terms under our statutes on the subject of theft.

"As defined in the Code, this `possession' is of a twofold character: (1) It may be in the actual owner, who is the general owner; or (2) it may be in some person holding the property for the actual owner — who is the special owner. It is not necessary that the possession and actual or general ownership should be in the same person at the time of `the taking' to constitute theft. (Penal Code, art. 728.) It is necessary, however, in the language of the statute that the taking should be `without his consent.' * * * Whose consent — the owners? Not necessarily, unless the actual owner was in `possession,' at the time of `the taking.' If he was not in possession at that time, then the terms `without his consent' mean without the consent of the special owner — that is, the person in possession. `Without his consent' refers specially to possession rather than ownership. Now, who is the person in `possession'? This is answered by the statute, which declares that `Possession of the person so unlawfully deprived of property is constituted by the exercise of actual control, care or management of the property, whether the same be lawful or not.' * * * The use of the disjunctive `or' in this provision of the statute has created no little of the trouble which has been experienced on this subject. Evidently the conjunction `and' was intended and should be used in its stead, in giving it proper construction."

Later, in the opinion, the following illustration is used:

"Suppose A., who is a nonresident, or resides in say Galveston county, is the actual owner of a stock of cattle or horses in Tom Green county or the Panhandle, which stock is under the actual control, care and management of B. One of the animals is stolen. The indictment should allege the ownership in B. alone, and it is, so far as consent is concerned, only necessary to allege and prove B.'s want of consent. Such allegation and proof fully makes out the state's case. If, under such circumstances, the accused has the consent of the real, actual or general owner, then it is his business to show it. For, `on the trial of any criminal action, when the facts have been proved which constitute the offense, it devolves upon the accused to establish the facts and circumstances on which he relies to excuse or justify the prohibited act or omission.' * * * The state was not bound to allege, neither was it bound to prove, the want of consent of the real owner."

A corporation may, in its corporate name, hold title (ownership) to personal property which is the subject of theft. It is equally true that the "actual care, control and management" (the possession) thereof must of necessity be in some natural person, some one acting for the corporation. Therefore the better rule of pleading in charging theft of such property is always to charge both ownership and possession in such natural person. In the instant case, the pleader alleges ownership in the corporation, but further avers that the property was held for it by certain parties, thereby alleging what is a necessary corollary to corporate ownership, that some natural person must be in actual possession; the averment of the indictment informs us as to the identity of these parties, and avers that the property was taken from their possession without their consent. Having averred that they were holding it for the corporation, and that it was taken from them without their consent, is tantamount to an averment that it was taken without the corporation's consent (in so far as the law of theft is concerned) without a direct allegation to that effect. As was said in Frazier's Case, supra:

"If, under such circumstances, the accused has the consent of the real, actual, or general owner, then it is his business to show it."

So, in this case, whether the allegation be as we find it, or whether ownership, as well as possession, should have been alleged in the particular parties named, if appellant had the consent of some other officer or agent of the corporation, he might have shown it in justification of the taking. Thurmond v. State, 30 Tex. App. 539, 17 S. W. 1098, is direct authority sustaining the indictment. We believe it lays down a rule in consonance with common sense and is not antagonistic to any rule of law when considered in connection with corporate ownership and possession of personal property. This case is distinguished from Swink v. State, 32 Tex. Cr. R. 530, 24 S. W. 893, and other cases cited, in that the indictments therein do not disclose the real owner to have been a corporation.

The alleged stolen property was four bales of cotton. If we properly comprehend the evidence, the appellant sold five bales of cotton to the witness Rettig. The cotton was in the yard of the Farmers' Warehouse Company. One bale was claimed by a man named Russeau. Appellant arranged with Rettig to redeliver the bale which Russeau claimed and it was put in the possession of Russeau.

In his testimony and in his motion for a continuance appellant claims that the absent witness, Lesa Hampton, had agreed to place a bale of cotton for the appellant in the yard mentioned; that the bale...