Thurmond v. State
| Decision Date | 16 December 1891 |
| Citation | 17 S.W. 1098 |
| Parties | THURMOND v. STATE. |
| Court | Texas Court of Appeals |
Appeal from district court, Nolan county; WILLIAM KENNEDY, Judge.
Prosecution against Arch Thurmond for larceny. From a conviction defendant appeals. Reversed.
Richard H. Harrison, Asst. Atty. Gen., for the State.
Omitting the formal parts, the indictment alleges that "Arch Thurmond and Lee Thurmond, acting together, on the 18th day of June, 1890, with force and arms, in the county of Nolan and state of Texas, did fraudulently take from the possession of the Lexington Ranch Company one cattle, the same being the corporal personal property of the said Lexington Ranch Company, without the consent of the said Lexington Ranch Company, with intent to deprive said Lexington Ranch Company of the value of the same," etc. It has been held by this court that our statute as to the allegation of the name of the defendant, or of any other person, necessary to be stated in the indictment, evidently refers to individuals, and does not embrace companies or corporations. Code Crim. Proc. art. 425. In short, our Code of Procedure is silent, and, having failed to supply us a rule, we are relegated to the common law. Code Crim. Proc. art. 27, and approved precedents; White v. State, 24 Tex. App. 231, 5 S. W. Rep. 857. And in that case the rule adduced from the common-law authorities was that, where an indictment is for the theft of property of a corporation, it must not only describe the corporation by its correct corporate name, but should also allege that it was a corporation. See, also, Stallings v. State, 29 Tex. App. 220, 15 S. W. Rep. 716. Tested by these authorities, the indictment in the case in hand is fatally defective, in that it does not allege that the Lexington Ranch Company was a corporation. To have been sufficient, the indictment should have alleged the property to have been owned by the corporation, setting out the fact that it was incorporated, and that the property was taken from the possession of some one who was holding the same for said corporation without the consent of the party holding for the corporation, and with the intent to deprive the owners of the value, etc. In all cases of theft it is necessary to prove want of consent of the owner or party holding in order to justify a conviction. Want of consent of the owner is one of the essential elements of theft. Ownership is constituted by a possession accompanied with actual care, custody, and...
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State v. Carson
...191 N.W. 857; Durrow v. State, 41 So. 987; Mazett v. State, 66 So. 871; Noah v. State, 72 So. 611; Roby v. State, 54 S.W. 1115; Thurmond v. State, 17 S.W. 1098; Pells State, 20 Fla. 774; White v. State, 5 S.W. 858; Martin v. State, 5 S.W. 859; State v. Mead, 27 Vt. 722; State v. Cent. Ry. C......
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State v. Carson
...191 N.W. 857; Durrow v. State, 41 So. 987: Mazett v. State, 66 So. 871; Noah v. State, 72 So. 611; Roby v. State, 54 S.W. 1115: Thurmond v. State, 17 S.W. 1098: Pells v. State, 20 Fla. 774; White v. State, 5 S.W. 858; Martin v. State, 5 S.W. 859; State v. Mead, 27 Vt. 722; State v. Cent. Ry......
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... ... and 1833; 2 Russell on Crimes, p. 100; Wallace v ... People, 63 Ill. 451; 1 Bishop's Crim. Prac. (3 Ed.), ... sec. 682; State v. Mead, 27 Vt. 722; Cohen v ... People, 5 Parker's C. R. 330; 2 Archbald's Crim ... Pl., 359; White v. State, 24 Tex. Ct. App. 231, 5 ... S.W. 857; Thurmond v. State, 30 Tex. Ct. App. 539, ... 17 S.W. 1098; McCowan v. State, 58 Ark. 17, 22 S.W ... 955.] There are cases to the contrary in other States, but in ... the absence of a statute we are relegated to the common law, ... and we hold the information bad in substance in failing to ... allege ... ...
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