Trimble v. State

Decision Date26 May 1894
Citation26 S.W. 727
PartiesTRIMBLE v. STATE.
CourtTexas Court of Criminal Appeals

Appeal from district court, Houston county; A. B. Watkins, Judge.

Frank Trimble was convicted of theft, and appeals. Affirmed.

H. W. Moore, for appellant. R. L. Henry, Asst. Atty. Gen., for the State.

DAVIDSON, J.

Appellant's contention that, "in order to constitute the accused a principal in the crime of theft, it devolves upon the state to establish his complicity in the original taking," is a correct enunciation of the law. This complicity may be shown by circumstances, and should be proved by the best attainable evidence. If, in pursuance of an agreement or conspiracy, or in furtherance of the common design, the appellant was to build the pen in which to place the stolen hogs, and did build it, and his confederates were to go after the hogs, and drive them to said pen, and did so, then he would be a principal. Smith v. State, 21 Tex. App. 107, 17 S. W. 552.

The hogs were placed in the pen built by appellant, and afterwards broke out and escaped. If they entirely escaped from the control of their captors, in law they would, in that event, be in the possession of their owner again. In such state of case a second taking would be a fresh larceny, and the taker could be punished therefor. The charge of the court correctly states this phase of the law. There was no request by appellant to require the state to elect upon which taking the conviction would be asked. The evidence as to the extent of the escape of the hogs is not as definite as it might have been; yet such escape was shown, and not denied by appellant. Appellant built the first pen in the cattle pasture of R. C. Spinks, as was also the second pen. After the second pen was constructed, appellant and Bayne went after and brought back the hogs, and put them in the pen, and they and Stewart killed them the following night. This pasture was fenced by three wires, the lower one being from two to three feet above the ground. This would afford no bar to the escape of the hogs therefrom; but, as a matter of fact, they did not go out of the pasture, and were still in there when driven to the second pen. We are of opinion this evidence was sufficient predicate for the charge given in regard to a second taking.

In addition to other inculpatory facts, one witness testified to appellant's confession of guilt on the examining trial. This confession was, in a qualified manner, contradicted by the justice who tried the...

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4 cases
  • Silvas v. State
    • United States
    • Texas Court of Criminal Appeals
    • 27 Junio 1913
    ...16 S. W. 188; Mason v. State, 31 Tex. Cr. R. 306, 20 S. W. 564; Mason v. State, 32 Tex. Cr. R. 95, 22 S. W. 144, 408; Trimble v. State, 33 Tex. Cr. R. 397, 26 S. W. 727. In the well-considered case and able opinion by this court in Welsh v. State, 3 Tex. App. 419, this court on this subject......
  • Taylor v. State
    • United States
    • Texas Court of Criminal Appeals
    • 15 Marzo 1911
    ...not be from Brown and Carr, but from the person who had altered the brand. This contention is not sound. In the case of Trimble v. State, 33 Tex. Cr. R. 400, 26 S. W. 727, Judge Davidson correctly holds: "The hogs were placed in the pen built by appellant and afterwards escaped. If they ent......
  • Gardner v. State
    • United States
    • Texas Court of Criminal Appeals
    • 6 Noviembre 1918
    ...but that there may be two separate and distinct unlawful takings of property so as to make two separate offenses. Trimble v. State, 33 Tex. Cr. R. 397, 26 S. W. 727; Taylor v. State, 62 Tex. Cr. R. 611, 138 S. W. 615. If the state relies upon either the first or any subsequent taking of the......
  • Polly v. State
    • United States
    • Texas Court of Criminal Appeals
    • 26 Mayo 1894

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