Walton v. State

• Citation: 170 S.W.2d 224
• Decision Date: 31 March 1943
• Docket Number: No. 22459.,22459.
• Parties: WALTON v. STATE.
• Court: Court of Appeals of Texas. Court of Criminal Appeals of Texas

170 S.W.2d 224

WALTON v. STATE.

No. 22459.

Court of Criminal Appeals of Texas.

March 31, 1943.

Commissioners' Decision.

Appeal from District Court, Brazos County; W. S. Barron, Judge.

Homer Walton was convicted of theft, and he appeals.

Reversed and remanded.

W. T. McDonald, of Bryan, and John R. Grace, of Hearne, for appellant.

Spurgeon E. Bell, State's Atty., of Austin, for the State.

KRUEGER, Judge.

The offense is theft of one cattle. The punishment assessed is confinement in the state penitentiary for a term of two years.

Appellant presents a number of questions for review. The most serious one relates to the court's action in declining to peremptorily instruct the jury to return a verdict of not guilty on the ground of variance between the allegation of ownership of the animal in question and the evidence introduced.

It is charged in the indictment in substance that "on or about the 21st day of November, 1941, and anterior to the presentment of this indictment, in the county and state aforesaid, Homer Walton did then and there fraudulently take from the possession of Mrs. Floyd Moore one cattle, the same being the corporeal personal property of the said Mrs. Floyd Moore," etc.

The uncontroverted evidence shows that Mrs. Moore was the wife of Floyd Moore; that they were living together as husband and wife at the time in question; that Floyd Moore, the husband of Mrs. Moore, and one Lamar Williams were partners in the cattle business; that some three months prior to the time of the alleged theft of the animal in question, they acquired a cow and calf; that they sold the calf to Floyd Bryan Moore, a son of Mr. and Mrs. Moore, for $11. The son, a youth about 8 or 9 years of age, testified that he had purchased the animal in question and that he cared for it. Floyd Moore also operated an auction ring at Madisonville, where on certain days cattle were bought and sold at auction. His business was such that he would necessarily be away from home much of the time but would go home at nights, eat and sleep there. Mrs. Moore testified that she was in possession of the animal in question during the absence of her husband but she stated no facts which sustained her conclusion.

It seems to be the established rule in this state that although the alleged stolen property belonged to a minor, the ownership and possession thereof may be alleged to be in either the minor or the parent. See Enox v. State, 131 Tex.Cr.R. 637, 101 S.W.2d 1022; 41 Tex.Jur. p. 135, § 84; Jackson v. State, 47 Tex.Cr.R. 85, 80 S.W. 631; Carter v. State, 138 Tex. Cr.R. 435, 137 S.W.2d 37; Wright v. State, 35 Tex.Cr.R. 470, 34 S.W. 273. Again, where stolen property is owned by the husband and wife jointly as community property and where the spouses are living together, the ownership should be laid in the husband. See Merriweather v. State, 33 Tex. 789, 790; Jones v. State, 47 Tex.Cr.R. 126, 80 S.W. 530, 122 Am.St.Rep. 680. However, there are exceptions to the general rule which authorize ownership and possession of stolen property to be charged to have been in the wife, that is, when the husband has abandoned her or where he is away from home and leaves the property in her exclusive possession, or where it is her separate property. See Childress v. State, 92 Tex.Cr.R. 215, 241 S.W. 1029; Wilson v. State, 3 Tex. Cr.App. 206, 209; ...