Warren v. State

• Decision Date: 18 December 1907
• Citation: 106 S.W. 382
• Parties: WARREN v. STATE.
• Court: Texas Court of Criminal Appeals

Page 382

106 S.W. 382

WARREN v. STATE.

Court of Criminal Appeals of Texas.

December 18, 1907.

Appeal from District Court, Lavaca County; M. Kennon, Judge.

Walter Warren was convicted of larceny, and appeals. Reversed and remanded.

See 105 S. W. 817.

F. J. McCord, Asst. Atty. Gen., for the State.

DAVIDSON, P. J.

This conviction was for cattle theft.

James Volentine, the alleged owner, testified to want of consent, ownership, etc. Among other things he testified that his son Doc was helping him attend to these cattle and assisted him in attending to everything, and to that extent was in charge of the cattle by his consent and authority. He further shows that his son was not in charge of them to dispose of, but testified to facts sufficiently strong to show that he recognized the acts of his son in reference to them. Among other things, he testified that if any of them were gone, and he wanted somebody to help get them up, Doc had authority to employ some one; that if any of them were gone, and anybody helped get them, he always made it a rule to pay him for it. Doc Volentine testified that he knew Will Clark, and also Walter Warren, and knew the cattle described by the witnesses in the case, running on Smothers creek, and described the cattle; and the evidence shows that these are the cattle that appellant is charged with stealing. His testimony in this respect is as follows: "I never authorized Will Clark, or defendant, to handle the cattle or drive them off. Papa had some cattle out down there, and I found part of them. They were in Will Clark's mother's pasture, and I told him to look out for the balance of them, and, if he found them, to put them in his mother's pasture until I got them, and I would pay him for it." He also testified that he did not authorize Will Clark to sell or to do anything with these cattle, except place them in the pasture. He further stated: "Yes; I told Will Clark to look out for them, and to take them up and put them in his mother's pasture." These cattle were identified by these witnesses and others as being the identical cattle alleged in the indictment. Appellant testified that in the summer of 1906 he was at Will Clark's house, and left there with him in the direction of Waelder. En route, on Smothers creek they found some cattle, the other side of Will Clark's house. A portion of his testimony is as follows: "We were riding along, and saw some cattle, passed them a little, and Will Clark said: `Hold on a little! I think there are some cattle I am looking out for, and we will take them along if you have some place you can put them.' I told him I thought I did, and we took them on up with us and put them in the J. R. Davis pasture." On cross-examination by the state, he said: "We were going on up, and struck these cattle. I did not state anything to him before we met these cattle. He said there was some cattle he believed he was looking out for and was authorized to handle. I did not know that he was stealing them." This much of the testimony is related, because it bears upon an alleged error in the charge.

The court charged as follows: "You are further instructed that, while a necessary element in the crime of theft is the want of the consent of the owner of the property to its taking, yet, notwithstanding the fact that the owner or his agent may have requested a party to take the property for a certain purpose, if...