Smith v. State

Citation42 Tex. 444
Decision Date01 January 1874
CourtTexas Supreme Court


APPEAL from Gonzalez. Tried below before the Hon. John P. White.

Indictment for hog-stealing. The evidence seems, from an examination of the record, to have been about equally divided in regard to the true ownership of the hogs, there being quite as much evidence to establish ownership in Smith, the defendant, as in Houston, the alleged owner. During the progress of the trial, on the suggestion of the District Attorney, the jury was taken in charge of an officer to “see and examine the sow as part of the testimony in the cause.” On the return of the jury into the court-room, none of them appear to have been examined as to what they saw during their absence. Verdict guilty, and punishment assessed at one year in the penitentiary.

Davidson & Atkinson, for appellant.

Geo. Clark, Attorney-General, for the State.


In this case, John Smith was tried for and convicted of theft of a sow and six pigs, alleged to be the property of Robert A. Houston. There was first a mistrial, because the jury could not agree, and by agreement, another trial was had at the same term, at which the jury found the defendant guilty, and assessed his punishment to confinement at hard labor in the penitentiary for one year. The indictment is in good form, and the charge of the court was an excellent exposition of the law applicable to the facts of the case, of which neither party complains. The evidence as to whether the hogs belonged to Houston, or to Smith, is conflicting, being, so far as we can judge, very well balanced. Each party makes by the evidence a good case of ownership of the hogs, not by the general opinions of the witnesses, but by the detail of particular facts and circumstances connected with them, and by familiar acquaintance with, and positive recognition of them by minute description, all extending continuously back to the time that the sow was a little pig. Her relationship even with other hogs was fully attested and established, by witnesses in favor of both sides. There is but a slight effort to discredit the witnesses in favor of Smith's title. The strongest effort in that direction is to show that Smith's wife was absent two or three minutes from an interview, which she swore she was present at, and heard all that was said; and the additional fact, that Smith's very important witness was his attorney, who defended him on the trial. The general character of none of them was attempted to be impeached. Although minute details are given, constituting reasons for a positive knowledge of the identity of the sow during her whole life, by both sides, still there is nothing very improbable or strange about it, unless it be that both sides should be able to prove so intimate an acquaintance with the sow and her history, as to make the most positive proof of ownership for Houston on one side, and for Smith on the other.

Had this been a civil suit, brought by Houston against Smith to recover the sow and pigs, and the jury had found in favor of either side, the verdict would have had ample evidence to have sustained it, and it could hardly have been set aside, because of the conflict or equal balance in the weight of the evidence. Had the verdict in such case been against Smith, it would have established that he had committed a trespass by unlawfully taking the property of Houston.

But to convict John Smith on this charge of theft, it should have been shown, beyond a reasonable doubt, that Smith took the hogs not only unlawfully, but also fraudulently. He proved most positively, by several witnesses, that they believed, and believed that they knew that the sow and pigs were John Smith's property. Was it shown, with reasonable certainty, that he did not believe, as his witnesses swore they did, that the hogs were his property when he drove the sow up? If he believed that, he is not guilty, and the jury should not have con victed him. A fraudulent taking of the property of another embraces the idea that the taker knew that it was not his own, and also that it was done to deprive the true owner of it. This is usually evidenced by its being done in such manner, and under such circumstances, as to avoid detection, or responsibility to the true owner. There was no evidence of concealment or covert action by Smith, tending to show that his taking of the hogs was with a fraudulent intent. We fail to see anything in his conduct, as exhibited in the record, which should have satisfied the jury that he did not believe that the hogs were his property, as he claimed them to be, and, by his witnesses, positively proved them to be.

One fact relied on to show a fraudulent taking, was his readiness to deliver up the hogs to Houston. There is conflict of evidence about that. But suppose there was not, he may have had sufficient reason for his readiness to give them up by the visit of three men to his house on this business, one of whom had a gun.

Another fact relied on to establish the fraudulent taking was that the mark of the sow was altered, and that, from inspection, it appeared so. This was also disputed by his witnesses, both as to the fact and as to his admission of it. This seems to have been regarded as a very important fact. If its truth had been in favor of Smith, and he had remained in possession of...

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21 cases
  • Hovey v. Sanders
    • United States
    • Court of Appeals of Texas
    • February 13, 1915
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  • State v. Powers
    • United States
    • United States State Supreme Court of Iowa
    • October 25, 1917
    ...... The situation was greatly aggravated by refusing to compel an. examination by question instead of lengthy statement in. narrative form, which practically reduced objecting to. motions to strike. The whole of it is fairly within Smith. v. State , 42 Tex. 444, wherein, on trial of one charged. with theft of an animal, the jury was permitted to leave the. court room and inspect for themselves the animal alleged to. have been stolen, with a view of thus solving in connection. with the evidence detailed by witnesses the ......
  • State v. Berry, 14359
    • United States
    • Court of Appeals of Texas. Court of Civil Appeals of Texas
    • July 21, 1965
    ...... Galveston, H. & W. Ry. Co. v. Waples et al., 3 Willson, Civ.Cas.Ct.App. page 484, § 410. As said by Chief Justice Roberts in Smith v. State, 42 Tex. 444: 'There is thus no authority found in this State for such a mode of enlightening * * * the jury as to the material facts of a case which they have to try.' In Austin & N. W. R. Co. v. Cluck, 97 Tex. (172) 181, 77 S.W. 403, 64 L.R.A. 494, 104 Am.St.Rep. 863, 1 Ann.Cas. 261, ......
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