Walls v. State

• Decision Date: 22 May 1901
• Parties: WALLS v. STATE.
• Court: Texas Court of Criminal Appeals

63 S.W. 328

WALLS v. STATE.

Court of Criminal Appeals of Texas.

May 22, 1901.

Appeal from district court, Hopkins county; H. C. Connor, Judge.

Jim Walls was convicted of horse theft, and he appeals. Affirmed.

L. D. King and James Patteson, for appellant. Robt. A. John, Asst. Atty. Gen., for the State.

HENDERSON, J.

Appellant was convicted of the theft of a horse, and his punishment assessed at two years' confinement in the penitentiary, and he prosecutes this appeal.

Appellant assigns a number of errors, but the only one that he appears to insist upon is the jurisdiction or venue of the offense. The indictment was presented and the case prosecuted in Hopkins county. The proof did not show any actual taking by appellant in person in Hopkins county. However, it did show that the animal ran in Hopkins county, and also in Delta. Appellant sold the animal to one Prim, the sale being consummated in Delta county. It appears that Prim was innocent of any knowledge that appellant had stolen or was stealing the animal in question. On the next day after the sale Prim went into Hopkins county, and took and appropriated the animal he had bought from appellant the day before. Appellant requested an instruction to the effect that if the actual taking did not take place in Delta county to acquit. The court also gave an instruction to the effect that if defendant, in Delta county, sold the horse to Prim, and pointed it out on the range without taking possession of the same, but authorized Prim to take possession of it, and Prim afterwards did, in Hopkins county, take and appropriate said horse by virtue of said sale by defendant, then, and in that event, the venue was sufficiently proved to be in Hopkins county. So that the proof, in connection with the requested charge and the charge given by the court, presents the question of venue in every phase in which it could be presented. It appears from the proof, as indicated above, that Prim, the party to whom the horse was sold, and who took actual possession of same in Hopkins county, did so as the innocent agent of appellant. Prim's taking, therefore, constituted appellant's taking. See article 77, Pen. Code; Sikes v. State (Tex. Cr. App.) 28 S. W. 688; 1 McClain, Cr. Law, §§ 207, 211; People v. Adams, 3 Denio, 190, 45 Am. Dec. 468; Com. v. Hill, 11 Mass. 136; State v. Wyckoff, 31 N. J. Law, 65. The question of fraudulent intent at the time of the taking, as insisted on by appellant, does not apply. The innocent...