Williams v. State
| Decision Date | 26 June 1891 |
| Citation | 16 S.W. 760 |
| Parties | WILLIAMS v. STATE. |
| Court | Texas Court of Appeals |
Fly & Hile and John R. Storms, for appellant. R. H. Harrison, for the State.
This conviction was had in the court below upon an indictment for theft of a horse, the allegations being in the ordinary form of an indictment for theft. The essential facts, succinctly stated, appear to be that Hensley, the alleged owner, loaned his horse to appellant to go to town to get some nails. On the way back with the nails appellant met with a friend, who informed him that a young lady wished to see him over at Dock Hamilton's. Defendant came back to Hensley's with the horse about dinner-time, and hitched him at the gate, and started off to walk to Hamilton's, when Hensley voluntarily, and without request or solicitation of the defendant, told him that he could ride the pony to Hamilton's if he would promise to come back before sundown. This was on the 15th of January, 1891. On the morning of the 16th of January, 1891, defendant sold said horse to one Schreiner, in the town of Kerrville, 25 miles from Bandera, and executed to Schreiner a bill of sale of the horse. There was no evidence tending to show whether the defendant went from Hensley's to Dock Hamilton's or not, after Hensley had loaned him the horse. From the facts, it appears that Hensley is the party who proposed that the defendant should ride the horse to Dock Hamilton's, and that defendant's possession was not acquired by any false pretext or misrepresentation on his part. Under article 727 of the Penal Code, where property has come into the possession of a person accused of theft by lawful means, it is declared that a subsequent appropriation of it is not theft, unless it was obtained by some false pretext or intent to deprive the owner thereof, and appropriate it to the use and benefit of the person taking it. We think the evidence in this case is wholly insufficient to show that the horse in question was obtained by the defendant by means of a false pretext, or with fraudulent intent existing in his mind at the time he acquired possession through the loan of Hensley, the owner. Cunningham v. State, 27 Tex. App. 480, 11 S. W. Rep. 485. The well-settled rule, under the article referred to above, is that, where a horse is delivered and hired alone, and such delivery was obtained bona fide, no subsequent unlawful conversion pending the contract would render it a felony, or make the offense felonious; and, further, if one hired a horse, and sold it before a journey was performed, no subsequent unlawful conversion pending the contract would make it a felony, or make the offense felonious; and, further, if one hired a horse, and sold it before the journey was performed, or sold it afterwards, before it was returned, he would not...
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