The ownership of the stolen property is laid in J. L. Lindsey. Appellant takes the position that Lindsey was a mere custodian and that the real ownership should have been laid in the sheriff and cites many authorities in support of his position. However, it is not believed that the appellant's contention is supported by the evidence, the substance of which we quote from the appellant's brief as follows:
"J. L. Lindsey testified: 'As to the circumstances under which I lost that car I will state the car I had in storage at 411 Main Avenue, on the third floor. The car originally belonged to the San Antonio Motor Sales Company, they sold the car and it was foreclosed on by the sheriff's office, and they had advertised it for sale, and the sheriff had it, and I had charge of all that stuff at the time. They turned over all of that stuff to me, and I was handling it just as fast as it came in. I guess I had forty-five or fifty cars on the third *Page 354 floor. And when the sheriff came down there to sell the car, I could not find it; I did not know where it was, in fact that is the first time I had missed it.' (S. F. p. 2).
"He also testified: 'As to whether this car belonged to the San Antonio Motor Sales Company, will state, it really belonged to the Union Securities Company; they had the notes on it, and we had a contract — we bought all of that stuff, as quick as it was sold we taken it over. It really belonged to the sheriff, that is who it belonged to, because the sheriff had the receipts.' (P. 6.)
"L. H. Krough testified that he was the partner of J. L. Lindsey."
Krough and Lindsey each testified that they did not consent to the taking of the property. It occurs to us that the sheriff was the general owner and Lindsey the special owner. The announcements of the court found in Frazier's case, 18 Tex.Crim. App. 434, particularly on page 442, are in accord with the correctness of the ruling of the trial court. Lindsey and his partner were clearly in possession of the property somewhat in the attitude of warehousemen. The property was in their warehouse. They had insurance upon it. It was in their care within the statute. We think they were special owners. See Rabe v. State, 85 Tex.Crim. Rep.; McKnight v. State, 70 Tex. Crim. 470, and other cases collated in the opinion. See also Torrence v. State, 85 Tex.Crim. Rep.. An exhaustive citation of authorities will be found in 21 L. R. A. (N. S.) 312. Among them are King v. State, 100 S.W. 387; Smith v. State, 34 Tex.Crim. Rep.; King v. State, 43 Tex. Rep. 351; Cox v. State, 43 Tex. Rep 101; Hill v. State, 11 Tex.Crim. App. 132. In Branch's Ann. Tex. P. C., Sec. 2447, are collated many cases illustrating the distinction between a special owner and a mere custodian. A review of them is deemed inexpedient. Suffice it to say that our examination of them and others has lead us to the conclusions stated, namely, that Lindsey was not a mere custodian but a special owner.
The evidence being conclusive and without controversy that Lindsey was in possession of the property, the complaint of the charge with reference to the court using the words "legal possession" we think is not such a fault as would warrant a reversal.
The motion for rehearing is overruled.
Overruled. *Page 355