Smith v. State

• Decision Date: 15 June 1886
• Citation: 17 S.W. 560
• Parties: SMITH v. STATE.<SMALL><SUP>1</SUP></SMALL>
• Court: Texas Court of Appeals

17 S.W. 560

SMITH v. STATE.¹

Court of Appeals of Texas.

June 15, 1886.

Appeal from district court, Erath county; T. L. NUGENT, Judge.

Jim Smith, who was indicted with Dave Smith, M. M. Smith, Tom Saunders, Frank Saunders, and Bud Taylor for theft of cattle, was convicted, and appeals. Affirmed on rehearing.

C. K. Bell and Lee Young, for appellant. J. H. Burts, Asst. Atty. Gen., for the State.

HURT, J.

The indictment charges, inter alios, that defendant took five head of cattle from the possession of Eugene W. Trammell, their owner, and eight head of cattle from the possession of W. A. Trammell. It seems that Eugene W. Trammell was in possession of and owned five head of cattle; that W. A. Trammell was in possession of and owned eight head; and that, when taken, they were running together, and were taken at the same time. The indictment alleged possession of and ownership in the five head in Eugene W. Trammell, and a similar allegation with reference to the eight head, to-wit, that they were taken from the possession of and were owned by W. A. Trammell. The allegation of the want of consent is as follows: "Without the consent of the said owners." It is urged by counsel for defendant that this is not sufficient, because each owner's consent is not denied. This criticism is just; but, under the allegations of this indictment, is it essential to the sufficiency of the indictment for the consent of each to the taking of all the cattle to be denied? It is not alleged that Eugene W. Trammell owned, controlled, or had possession of the eight head of cattle; nor is it alleged that W. A. Trammell managed, controlled, or had possession of the five head. There was no authority in Eugene W. to give defendant, or any one else, his consent to take the eight head, or any part thereof. The fact that they were running together when taken certainly would confer no such authority. These observations apply with equal force to the authority of W. A. to give consent to the taking of the five head, the property of Eugene. This is not a case in which there is joint possession or ownership.

Over objection of defendant, the court admitted in evidence a conversation between M. M. Smith and one Kenyon. By the record it appears that Dave and Jim Smith started from their houses, near Poolville, in Parker county, coming after the cattle: that the witness Kenyon stayed all night at the house of M. M. Smith, for whom he was at work digging a well; and that, on the following morning, at the cow-pen, this being about 10 or 12 days from the time when Dave and Jim started for the cattle, in the presence of the witness P. J. Morris, and the wife of M. M. Smith, there being in said pen three cows and calves, Kenyon remarked to M. M. Smith that he had one good cow, to which Smith replied that one of the cows was his own, and that the other two were estrays, but that he knew the men who owned them, and that he could buy them; that the owner of said cows was up in the spring and offered them to him for $30. To this Kenyon replied that it was cheap, and that he (Smith) ought to have bought them. To this Smith replied that he would buy them in the fall. Smith then said he had a bunch of cattle out west in which there were 32 or 33 head, but did not say in what county they were. Kenyon asked: "Are you not afraid that they will be stolen or stray off?" and asked Smith if he had any one looking after them. To this Smith replied that he "only paid for what he got." Defendant was not present at this conversation. Counsel objected (1) because irrelevant, and calculated to prejudice his case with the jury; (2) that the declarations of M. M. Smith were not and could not have been in furtherance of a conspiracy between himself and defendant to steal said cattle. In his explanation appended to the bill the learned judge says: "That part of the evidence which relates to there being two stray cows in the pen was excluded. The only part of said conversation admitted referred to M. M. Smith's owning a bunch of cattle out west, of thirty-two or thirty-three head. The testimony actually admitted was expressly confined to the issue of intent of M. M. Smith, or conspiracy between him and Bud Taylor, and it was so expressly limited at the time it was admitted."

The second bill of exceptions presents very nearly, if not precisely, the same question. It appears that P. J. Morris and Kenyon were digging a well for M. M. Smith, and that on Friday before Sunday, July 12th, the men Dave and Jim Smith started for the cattle. A conversation occurred between Morris, Kenyon, and M. M. Smith. The substance of it was that Smith asked Morris to lend him his horse to ride about a week to get a bunch of cattle he had out west in Erath county. Morris agreed to and did lend him the horse, which was a sorrel. Smith said he and Dave Smith were going after the cattle. A discussion then arose as to the direction of Erath county from the parties, they being near Poolville, in the northern part of Parker, near Wise county. Morris remarked that Erath was not west, but south of west, from where they were, and that Palo Pinto and Stephens counties were west. Smith then said there were 13, 14, or 15 head of the cattle, and, in reply to the remarks about the counties of Palo Pinto and Stephens being west, remarked: "Stephens, by God! that is where they are." To all of which the defendant objected upon the grounds stated in the first bill, and the same explanation is given by the judge as to the first bill.

It appears from the third bill that the state proved by Morris and Kenyon that they began digging the well for Smith in the latter part of June, 1885, or the first part of July, and that during the first week of their employment Bud Taylor came to Smith's, and that Smith and Taylor went away from the well to a shade, and there engaged in a private conversation, which was not heard by Morris or Kenyon, and that a few days after this, and before Smith borrowed Morris' horse, Bud Taylor came a second time, and he and Smith again went to the shade of a tree, and had another private conversation; that while they were thus engaged Morris and Kenyon went to the house for their dinner, and when they returned to the well they met Smith and Taylor going to the house. We are informed by the learned judge that this testimony was admitted expressly on the question of conspiracy between M. M. Smith and Taylor.

The fourth bill informs us that the state proved by the witness James Lentz that he and Bud Taylor were at work on the farm of Henry Lentz, near Poolville, chopping cotton, on the 3d of July, 1885; that Bud Taylor asked witness if he had ever "pulled anything." To this Lentz replied: "Nothing bigger than a watermelon." Taylor then said that he knew where there was a bunch of stray cattle, in which there were 13 head, including one cow and calf, but did not describe the other cattle; that Taylor proposed that he would furnish a hand with whom Lentz should go and get the cattle, and drive them to Cartersville prairie, and that there he would meet him with a lot of his own cattle, and drive them to Ft. Worth, sell them, and divide the money. Lentz replied that he would not do so. This evidence was also admitted for the purpose, expressly stated at the time, of showing a conspiracy between M. M. Smith and Bud Taylor.

The fifth bill complains that the state proved by John Guyger that at some time between June 1, 1885, and the middle of said month he saw Bud Taylor and Tom Saunders together back of Mrs. Saunders' farm, in Erath county; that Guyger, George Lidia, Tom Saunders, and Bud Taylor were present. Guyger did not then know Taylor. That Tom Saunders called him "Bud," and he said he was looking for some cattle. Two or three days after Guyger first met Taylor in June, he (Taylor) went to Guyger's house, which is near that of Saunders, and said he had spent the night with Tom Saunders, and that he was looking for a bunch of stray cattle that belonged to him. He described them as being branded SD, and said there were other brands upon them; witness thought TW and TE, but was not positive. Taylor said that the SD was the holding brand, and did not describe them by flesh marks. He (Taylor) said that Tom Saunders had told him the cattle ran around there. The same objection was urged in this as was urged in the first bill. To this bill there is appended the following by the learned trial judge: "The witness locates the alleged conversation at about the middle of June, 1885. It was further shown that witness and Tom Saunders at that time lived in Erath county, near the range where the cattle charged to have been stolen were running, and that it was in that neighborhood that he saw Bud Taylor, and heard the declaration made by him as stated above."

From the sixth bill it appears that the witness Guyger testified over defendant's objection, as follows: In Big Valley, Parker county, about a quarter of a mile west from Buckner's crossing on the Brazos river, on July 16, 1885, a little after 12 o'clock M., he was at the house of Mr. James Barker, which was about 25 steps from the Stephensville, Morgan's Mill, and Weatherford public road, and saw a couple of men driving a bunch of from 10 to 15 cattle in the direction of Weatherford, on said road; that he knew both of the men well; that one was Tom Saunders and the other was Willis Brooks; that Tom Saunders lives about 5½ miles from the house of the state's witness Sweet, and that Brooks lives about the same distance from Sweet's as he from witness; that prior to this date, — July 16, 1885, — Brooks had been away from his house for some time. Appellant objected "because he was not in any way shown to be connected with the cattle described by witness Guyger, nor with said transactions, nor with Saunders or Brooks; that said testimony was irrelevant, calculated to prejudice him with the jury, and relates to another and different offense from the one with...