Willey v. State

• Decision Date: 24 November 1886
• Court: Texas Court of Appeals
• Parties: WILLEY and another <I>v.</I> STATE.<SMALL><SUP>1</SUP></SMALL>

3 S.W. 570

WILLEY and another

v. STATE.¹

Court of Appeals of Texas.

November 24, 1886.

Appeal from district court, Orange county.

The conviction of the joint defendants in this case was for the theft of a cow, the property of Oliver Bland. A term of two years in the penitentiary was assessed against each of the appellants.

The case for the state is stated substantially in the evidence of Robert Meyers, who testified that some time in the summer of 1884 he was at the residence of the defendant John Willey, sitting on the gallery, talking with John Willey and his father, old man B. Willey. While thus engaged on the gallery, the witness saw the defendant Henry Willey, and John Jett, and perhaps some one else, drive a herd of 10 or 12 cattle past the house. John Willey remarked to his father that there was the Craft cow they were going to kill. Witness looked at the animal indicated by John Willey, and told him that that cow belonged to Oliver Bland. John Willey and his father insisted that the animal was the Craft cow; the one they were looking after for Mrs. Craft. Witness, John, and old man Willey then went to the pen in which meanwhile the cattle had been placed, and witness identified the animal to them as Oliver Bland's cow. She was a red cow, with a white face, and white flecks on her flanks, and branded "H." Witness told John Jett at the pen that the cow was the one Henry Reese sold Oliver Bland. After some dispute the cow was turned out, and Henry Willey then bought a beef from his father, old man B. Willey, and butchered it, turning the other animals out of the pen. A month or more later the witness saw the defendants, John and Henry Willey, driving a small bunch of cattle across the prairie towards their house. That bunch included the same cow which he had pointed out to them as the Oliver Bland cow. The defendants, with that bunch of cattle, were about six hundred yards from their house, going in that direction. The witness never afterwards saw that cow, but two or three weeks later he saw the defendant John Willey at his home, and asked him about the cow. John said that she had been butchered. At this point the record recites, in brackets, as follows: "Defendants' counsel here objected to witness stating anything about Henry Willey, he not being present, which was by the court excluded." Continuing, the witness stated that John Willey said he helped to skin the cow, and that Henry Willey bought her from Jack Ochiltree. Cross-examined, the witness stated that the conversation with John Willey, last mentioned, took place at John Willey's yard fence, no one being present but the witness and the said John. If old man Jake Cochran was then at the Willey house the witness did not know it. Witness could easily distinguish the cow by her flesh-marks when he last saw her in the herd of 10 or 12 driven by the defendants. He was absolutely certain that cow was the Bland cow. Re-examined, the witness said that he had never seen the Bland cow on the range since he saw the defendants driving her towards their house in the fall of 1884. In the same conversation in which John Willey said that the cow was purchased from Jack Ochiltree, and that he helped to skin her after she was killed, he said that the R. H. Smith brand showed on the under-side of the hide. He did not admit that the animal was the Bland cow. Nobody ever pointed out the Bland cow to the witness.

Jack Ochiltree was placed on the stand by the state, and testified that he had never, at any time, sold a cow, of any description, to either of the defendants.

One Lewis testified, for the defense, that he and Henry Willey were partners in the butcher business. Henry Willey furnished and butchered the beef, and witness sold it, knowing nothing more about it. John Willey was in the employ of witness and Henry Willey throughout the first eight months of 1884.

A Mr. Graham testified, for the defense, that he was present, and witnessed the purchase of a pale red cow branded "H" by Henry Willey from Jack Ochiltree, and saw that cow butchered.

The special instruction, which is the subject-matter of the third head-note of this report, reads as follows: "If the jury believe from the evidence that, at the time of the taking, the defendant John Willey was a hired hand in the employ of the defendant Henry Willey and one Jeff Lewis, and assisted the said Henry Willey in taking possession and killing of said cow alleged to have been stolen, and that he did so under the instructions and by direction of the said Henry Willey, and at the time of the said taking the defendant John Willey believed that said cow was the property of the said Henry Willey, or of the said Henry Willey and Jeff Lewis in partnership, and had no knowledge of any criminal intent on the part of the said Henry Willey in the alleged taking, you will find the defendant John Willey not guilty."

J. T. Hart, for the appellant, maintaining the legal propositions announced by the opinion.

Asst. Atty. Gen. Burts, for the State.

WHITE, P. J.

Appellants were jointly indicted for theft of a cow, the property of Oliver Bland. When the case was called for trial after their motion for continuance had been overruled, defendants presented to the court an application for a severance as follows, viz.: "Now come defendants in the above-entitled cause, and ask a severance upon the trial thereof, and defendants agree and ask that defendant Henry Willey be placed first on trial," which application was subsequently amended as a separate application of John Willey, and by the addition that ...