Appellant was convicted of the theft of two bales of cotton, and his punishment assessed at confinement in the penitentiary for a term of five years.
Appellant reserved a number of bills of exception to the misconduct of the jury; his contention being that it was a vital issue in the case as to whether or not Hurt, the owner of the cotton yard, was in possession of the two bales of cotton (that is, whether or not he had such actual care, control, and management of the cotton as to constitute the possession in him), and that while the jury were deliberating about their verdict, and particularly as to this issue, one of the jurors cited a similar case within his experience to the effect that he knew of two bales of cotton that belonged to two distinct owners left at a gin near Leander, and that it became a question whether or not the party could be prosecuted for theft of the property from the owner of the gin. The former district judge was referred to, and he informed them that a prosecution would lie, and the party was prosecuted for the theft of the two bales of cotton, ownership being laid in the owner of the gin, and the party was convicted. Now, it is claimed that the citation of this case and the discussion of this matter before the jury was such misconduct as was calculated to injure appellant, and properly so, as one of the jurors admitted that it had some influence with him. While, as we understand the evidence, the ownership was properly laid in the owner of the cotton yard, in whose possession the two bales had been left by the respective owners when they were taken, and this whether or not he was responsible to the owners in case of loss, yet an issue was made before the jury as to this question of special ownership, and the court charged on it; and we are not prepared to say that the discussion of the case cited by one of the jurors as illustrative of his contention may not have had its bearing on the jury in reaching a result on this proposition.
Appellant also contends that there were two separate takings of the cotton, and that the court ought to have given his requested charge on this subject; that appellant, at most, could only have been convicted of a misdemeanor in taking one bale. Referring to the statement of facts on this subject, we find that some of the facts were agreed to, and certain issues left to be determined by the testimony. Among these issues was whether the two bales of cotton, neither being worth as much as $50, were taken at the same time, and under circumstances constituting a single taking. Witness Hurt testified on this subject as follows: That he was the owner of the cotton yard, and the two bales (one belonging to Edrington and one to Turner) were taken out of his yard on the night of the 14th of June, 1901. That the two bales were not side by side when stolen. They were about thirty steps apart. The parties who stole *Page 358 the cotton had driven up to the Edrington bale with a wagon and loaded it, as the wagon tracks went up to where it was. The Turner bale was moved or rolled about thirty steps, as was shown by its trail on the ground, from the north to the south part of the yard. Both bales could have been taken on the same night and on the same trip, but they could not have been lifted on the wagon at the very same moment by a single act. The court gave no charge on this subject whatever, and refused the charge requested by appellant. Now, if the proof was uncontroverted to the effect that the two bales of cotton were taken in one continuous transaction on the same night, then there would be no error in the court's action. What is a continuous transaction is sometimes of a complicated character, and there are a number of cases illustrative of what is such continuous transaction. Cody v. State, 31 Tex.Crim. Rep.; Whart. Crim. Law, sec. 931, and cases there cited. In the view entertained by the writer, if appellant drove the wagon into the cotton yard on the night in question, and found two bales of cotton some thirty yards apart, and loaded one of said bales on his wagon, and then drove to the other or rolled the other to his wagon, and there loaded it, and then drove off with the cotton, this would constitute a continuous transaction; but if two separate trips were made for the cotton, though on the same night, these would be distinct thefts. In Cody's case, supra, almost this identical case is given as an illustration, as where seed cotton is in a field, and a wagon is driven to the fence, and the thief with a basket loads his wagon by a number of trips made to the cotton pile. This is said to be a continuous transaction, and to constitute one theft. Of course, if the value of each of said bales of cotton had been $50 or over, this question would not have arisen, because appellant would then have been interested in making the transaction only one theft; otherwise he would have been guilty of two distinct felonies. Under the proof in this case, we are not clear that the two bales of cotton were taken on the one trip. Turner says both bales could have been taken on the same night and on the same trip, but he does not distinctly state that they were so taken. We might infer that they were, but this inference, under a proper charge, should have been left to the jury for solution.
It is not necessary to discuss other errors assigned, but, for those discussed, the judgment is reversed and the cause remanded.
Reversed and remanded.