Willis v. State

• Court: Texas Court of Appeals
• Writing for the Court: White
• Citation: Willis v. State, 6 S.W. 857, 24 Tex. App. 586 (Tex. App. 1888)
• Decision Date: 01 February 1888
• Parties: WILLIS <I>et al.</I> v. STATE.

6 S.W. 857

WILLIS et al. v. STATE.

Court of Appeals of Texas.

February 1, 1888.

Appeal from district court, Jones county; J. V. COCKRELL, Judge.

Indictment for larceny against W. E. Willis and James Boyd. Verdict of conviction, and a penalty of two years in the penitentiary assessed against each defendant. In addition to the facts disclosed in the opinion, it may be stated that the proof in the case was substantially the same as that developed on the separate trials of appellants for the theft of Wright's cow, (see Boyd v. State, ante, 853; Willis v. State, ante, 856;) the animal involved in this prosecution being one of the several whose mark and brand were changed at the same time and place that the mark and brand on Wright's cow were changed. The wife of the appellant Boyd testified that appellant Willis, at the time the brands were altered, was living at Boyd's house.

Jones & Cunningham, F. G. Thurmond, and C. I. Evans, for appellants. Asst. Atty. Gen. Davidson, for the State.

WHITE, P. J.

This is a companion case to the cases of Boyd v. State, ante, 853, and Willis v. State, ante, 856, (decided on a former day of this term;) the two convictions in those cases in the court below being for the theft of a cow, the property of W. T. Wright. This case presents a joint prosecution and joint conviction for the theft of one head of neat cattle, the property of one D. E. Coffman. There is but little if any difference in the facts proved in this and the other two cases. It will be remembered that the Wright cow ranged one and a half miles west of Abelene, in Taylor county. Coffman's cow ranged five or six miles south-west of Abelene, in Taylor county. Coffman had not seen his cow in her range since the fall of 1886. When she was next seen, she was in the pen of the appellant Boyd, in Jones county, on August 10, 1887, where these appellants and other parties altered the marks and brands upon her. Neither of appellants, nor any one shown to have been acting in concert with them, was ever seen in possession of the animal in Taylor county. When found in possession in Jones county, they made no explanation, nor attempted any, as to their possession.

On this trial, they pleaded specially, in bar to the prosecution, that they had already been tried and convicted for the theft on the Wright cow, and that the taking, if any, of the two cows, was one and the same transaction, and occurred at one and the same time and place, and that the evidence necessary to a conviction in the one was essential to a conviction in the other case. It is a well-settled rule that the stealing of different articles of property belonging to different persons, at the same time and place, so that the transaction is the same, is but one offense, and that the accused cannot be convicted on separate indictments, charging different parts of one transaction as in each a distinct offense. A conviction on one of the indictments bars a prosecution on the others. Wilson v. State, 45 Tex. 76; Wright v. State, 17 Tex. App. 152; Shubert v. State, 21 Tex. App. 551, 2 S. W. Rep. 883; Alexander v. State, 21 Tex. App. 406. This plea was submitted to the finding of the jury, under appropriate instructions by the court, and in their verdict in response to this issue they found the special plea to be untrue. Upon the facts before them, we are of opinion the jury were warranted in their finding, because, in addition to the fact that the animals belonged to different owners, they did not run in the same range, and it is not probable they were taken at the same time and place. Alexander v. State, 21 Tex. App. 406.

With regard to this special plea, it appears that the jury, after their retirement to consider of their verdict, wished additional instructions from the court as to the party upon whom the burden of proof rested to establish the issue presented by said plea. A writing propounding this question was sent to the judge through the sheriff, but the same was not signed by the foreman, but by one of the other jurors. This, it is insisted, was violative of the statutes which provide that a jury shall communicate with the court through their foreman. Code Crim. Proc. arts. 695, 696; Shipp v. State, 11...