A motion for rehearing has been filed on behalf of the State by the Honorable Brady P. Gentry, County Attorney of Smith County. In connection with the motion he presents an able and ingenious argument urging that we were in error in holding that appellant was not guilty of theft under Article 1329, P.C. He insists that appellant lawfully obtained care, control and management of the barn, but that he did not obtain lawfully the actual care, control and management of the severed parts; that the legal care, control, management and possession of the property ceased by his wrongful act, and that after the severence, by reason of the wrongful act in accomplishing it, the legal care, control and management reverted to Greenberg.
We cannot agree with the contention urged, for it seems to us to confuse the ideas of legal ownership and possession. The ownership of the property never passed out of Greenberg; under the lease contract with appellant the possession of the property passed to him, but the legal title to the property, that is, the real ownership, remained in Greenberg; the title to the severed parts of the barn was in him as completely after the severence as before. But the gist of the contention in the motion is, that when appellant, by an act unauthorized by his lease contract, severed the timber from the barn, this act in itself revived the possession of Greenberg. We cannot accede to this proposition. That a party may sever from the realty and thereby reduce it to personalty, and become guilty of theft is not an open question in this State. Exparte Wilke, 34 Tex. 155; Harberger v. State, 4 Texas Crim. App., 26; Alvia v. State, 42 Tex.Crim. Rep., 60 S.W. Rep., 551; Meerschat v. State, 57 S.W. Rep., 955; Farris v. State, 69 S.W. Rep., 140.
The novelty of the case is presented in the question of alleging and proving possession as required under our theft statute. Whether possession was rightful or even lawful does not always control. It has been held that where property is stolen from one who had himself acquired it by theft, ownership and possession may be alleged in the first thief. Looney v. State,80 Tex. Crim. 317, 189 S.W. Rep., 954. The question here, to our minds, is not the question of legal ownership, but the question of possession. When Greenberg put appellant in possession of the barn and other property on the leased *Page 263 premises he parted with that character of possession which would permit an allegation of possession in him on a charge of theft of any of the property. If a third party had severed the timbers from the barn, and been prosecuted for theft, it would have been necessary to allege possession in the appellant. There is no question in our minds about the correctness of this proposition. The appellant, being in possession of the barn under his lease contract, was by virtue of the same lease contract in possession of the severed parts of the barn, although his act in committing the severence may have been unauthorized; and so we have a case in which it would be necessary to charge him with theft from his own possession, and, as we said in the original opinion, it is not that character of case coming within the rule as to theft of one's own property.
The motion for rehearing calls our attention to the fact that we were in error in our original opinion, wherein we stated:
"The owner had protected himself against any depredations by taking the written obligation of the appellant to make repairs —."
An examination of the lease contract as it appears in the record shows that we were in error in such statement, and that portion of our original opinion will be corrected; however, this inadvertent, erroneous statement does not change the legal announcements in the opinion.
We are very clear in our minds that the former opinion makes the proper disposition of this case in holding that the prosecution could not proceed against appellant under a charge of theft in the ordinary form. In the motion for rehearing the county attorney requests that in the event we shoul adhere to our former holding, we announce positively and pointedly whether the offense would be theft by conversion, or no offense at all. Having made, as we believe, the proper disposition of the case, any announcement along the line suggested would be dicta, and it has always been the policy of this court to avoid that wherever possible in reviewing a case. Upon investigation of the motion for rehearing the writer has become very much interested in the question presented. While the amount involved in this prosecution is small, yet a positive announcement of the law controlling would be one far-reaching in its character. We regret that no authorities have been cited for our help, and we do not feel, under the circumstances, that we should make a more decisive announcement as to our impressions as to the character of the offense, if any, than is contained in our original opinion. The close of our term is approaching, and many cases are pending where parties are confined in jails of the State. The press of business in an endeavor to dispose of those cases before adjournment has precluded us from making as thorough an investigation as we would desire to make into the legal proposition involved.
The motion for rehearing will be overruled.
Overruled. *Page 264