Emmerson v. State

SIMKIifS, Judge. Appellant was convicted of horse theft and his punishment assessed at five years. There are but three questions that need be considered: 1. Did the court err in overruling the application for continuance? The absent witness, T. Z. Davis, would testify “he saw defendant purchase the alleged stolen horse, for a valuable consideration, in Fort Worth.” This application is too indefinite to be considered. The facts, not mere conclusions, should be set forth. Rollins’ case, 32 Texas Crim. Rep., 566. 2. The evidence is clearly sufficient to warrant the conviction. Appellant was seen at a railway station in Johnson County, two miles from where the horse was stolen, that night. He had no business of any kind there. On the morning of the third day he was trying to sell the horse in Denton — where he stated to one that he had purchased the horse in the Indian Territory; to another, that he bought him in Den-ison from Davis or Evans. Again he stated he had bought it in Fort Worth from Flynn, and Davis was present. On the trial he took the stand and stated that as soon as he bought the horse he started for the *91 Indian Territory, but bad been riding around bunting for work. He admitted be bad slept out in tbe woods, but claimed to have lost bis money accidentally. Tbe court did not err in overruling tbe motion for a new trial. - 3. Appellant claims that tbe court erred in refusing bis special instruction to tbe effect that if D. C. Lay bad tbe actual care, control, or management of tbe borse, and loaned tbe same to B. B. Matbis to use in tbe discharge of bis business, and it was tben stolen, tbe State must sbow tbe want of consent of Matbis to tbe taking. Tbe facts sbow that tbe stolen borse belonged to one Fowler, wbo left tbe neighborhood, leaving bis borse in charge of D. C. Lay; that on Wednesday night, August 2, 1893, Matbis borrowed tbe borse to ride to church, two miles distant, and return, and tbe horse was stolen while at tbe church. Tbe court charged that under such a state of facts tbe borse would be deemed to be in the' possession of I). C. Lay at tbe time it was stolen. Tbe Code declares that “tbe possession of tbe person unlawfully deprived of property is constituted by tbe exercise of tbe actual control, care, or management of tbe property, whether tbe same be lawful or unlawful.” Penal Code, art. 729. To constitute possession, mere temporary custody is not sufficient; there must be combined with it tbe control, care, and management of tbe property. Willson’s Crim. Stats., sec. 1273. As said in Bailey’s case, 18 Texas Crim. App., 427: “ ‘Possession’ and ‘custody’ are not convertible terms, under tbe Code; and if property, at tbe time it is taken, be in tbe mere temporary custody of a ward, servant, or other person, tbe indictment need not allege tbe possession to be in such temporary custodian.” It therefore follows that tbe want of consent of such custodian need not be proven. We find no error in the charge given, or in refusing tbe special charge. Tbe j udgment is affirmed. Affirmed. DavidsoN, Judge, absent.