Pigg v. State

• Decision Date: 01 January 1875
• Citation: 43 Tex. 108
• Parties: JOSEPH PIGG v. THE STATE.
• Court: Texas Supreme Court

43 Tex. 108

JOSEPH PIGG

v.THE STATE.

Supreme Court of Texas.

1875.

APPEAL from Criminal District Court of McKinney city, in Collin county. Tried below before Hon. Silas Hare.

Joseph Pigg and Thomas Smith were indicted jointly for theft of a gelding, the property of John Christian. Pigg was put upon trial, and John P. Snyder, witness for the State, testified that he was present on Tuesday night, 22d of September, 1874, in Collin county, when defendant and Smith took Christian's horse, and defendant took S. F. Cooke's horse. They were both present when the horses were taken, and acting together.

On cross-examination Snyder testified that Christian and others suspected that defendant and Smith were engaged in stealing horses, and requested witness to get into their confidence and learn whether they were or not, which witness did, and they (Pigg and Smith) told witness they had Christian's horse picked out, and witness agreed with them to engage in stealing the horses.

Witness (Snyder) so conducted the affair that he was present when defendant and Smith took the horses and led them out of the stable, when the party was arrested. Christian testified that he had given no consent that his horse should be taken, but corroborated Snyder in the arrangement by which the defendant was detected.

The plea of insanity was insisted on, and one Dr. J. B. Tarpley, being called for defendant, stated that he had been the family physician of W. J. Pigg, father of defendant, about two years, and had practiced medicine about thirty-eight years; that about two years before the trial he was called upon to see defendant, who was sick; that in making a diagnosis of the disease witness found he could not satisfactorily make such diagnosis from the mental condition of defendant and the disease with which he seemed afflicted; that his mind at the time was in an abnormal condition not occasioned by the disease, and that his diagnosis of the disease was made without reference to the cause of this mental condition. Witness said he had on several occasions noticed the actions of the defendant. Once he came to Sunday school, and seemed wild; witness asked him what he wanted; defendant said “his father had sent him there to get his reaper;” defendant “spoke somewhat confusedly, and if I had not known what he wanted I probably could not have learned from him. I told him where it was, and he went and got it and carried it home. I also noticed him once at a funeral; he acted singularly in riding in and out and crossing the procession.” Upon this counsel for defendant asked the witness “whether he was of opinion that defendant was of sound or unsound mind?” to which the district attorney objected, and the opinion of the witness was excluded.

The father of defendant testified that insanity had occurred in the ancestors of the mother of defendant, and that defendant had received several injuries on the head, and was not at himself at times.

The court instructed the jury, after giving the statutory definitions pertaining to the offense.

“6. That the State must show that the gelding was taken without the consent of the owner; and upon this point I instruct you that if Christian, the alleged owner, by himself or by some one acting for him, by words or acts, suggested or induced defendant, or those with him, when he may have acted in an original intent or design to steal the gelding, and having induced such original intent, he, or the person acting for him, acted as one of the party throughout, that is, in the original intent to steal, and in the acts resulting in theft, then in such case the want of consent would not be established, and the defendant should be acquitted. If, however, on the other hand it shall appear that the intent to steal the gelding originated with the defendant, or those with whom he acted, and that Christian, or no one acting with him, induced or suggested such original intent, but only used means intended to detect and catch the thief, without affording him an opportunity to consummate his purposes, or to provide for its discovery after such intent was formed by the defendant or those with whom he may have acted, and such intent so formed was not suggested or induced by Christian, or any one for him, and his consent was not actually obtained, then in such case the crime would be...