The State asks a rehearing with a view of setting aside the former reversal and securing an affirmance of the judgment. In a very ingenious and able argument the State makes several contentions. Among other things it is strenuously urged that the opinion was in error in holding that Alexander was not in custody, control and management of the property. In other words, that the allegation was improper in alleging in him the ownership of the automobile. In the light of what is said in the argument for the motion we have read some of the cases cited. Those cases we think were properly decided but are inapplicable to this case. *Page 62
It is deemed unnecessary to restate the testimony bearing upon the ownership in Alexander, some of which was set out in the original opinion, but as we understand the evidence, Alexander was not in exclusive management and control of the property. There is no claim that he owned it, and the State's contention is only based upon the proposition that he had exclusive care, control and management of the property. We do not believe the evidence sustains this proposition. He was but the agent of the owner to sell the property, and whatever control he may have had was only with a view of making the sale. The property was not in his actual possession, nor did he have the right to manage or control it otherwise than as connected with his sale agency. It may be more than seriously questioned if he had even custody of the property, because the facts indisputably show that the automobile was in the garage of the owner on her premises, and had not been removed from it after the death of his brother-in-law until sold after the theft of the tires. It remained there, and when Alexander found a would-be purchaser he would take him to the garage, show the car to him, close the doors and go away. This garage was on the homestead of the owner. This was a theft case, the indictment charging the theft of automobile tires that were taken from the automobile in the garage.
It is laid down as a correct proposition that possession must be alleged in the person having actual control, care and management of the property at the time of the fraudulent taking. A great number of these cases will be found collated by Mr. Branch in his Ann. P.C., p. 1323. It is also laid down that if an employe, servant or person in charge of the property at the time of the taking had more than the mere custody thereof and had actual control, care and management of the property, at the time not under the immediate supervision of the general owner, possession must be alleged in such employe, servant or person having such possession. The cases are cited by Mr. Branch on the same page supporting this proposition. Mere custody is not possession. This is supported by an unbroken line of cases found listed on the same page of the same work. Property in the mere custody of a servant or other person must be alleged to be in the possession of the owner and not in such custodian. Many cases will be found collated by Mr. Branch in his work to sustain that proposition. Mr. Alexander's agency, employment or whatever it may be termed with reference to the automobile, did not extend beyond his authority to sell and dispose of the property. The fact that Alexander slept in the house owned and occupied by his sister, who was the real owner of the automobile, did not thereby constitute him owner by exclusive control, care and management of the premises, garage, or the auto in the garage. The premises was the property of his sister and occupied by her as her home. The fact that he slept in her house did not make him the owner and did not constitute in him exclusive care, control and management of the property. The auto had not been out of the garage at any time after the death of his sister's husband. His ownership consisted of his right *Page 63 to sell the property. If this right to sell constituted ownership in him, then all sale agents, employes and clerks would have such exclusive care, control and management of the property as to constitute them owners, though working under the immediate control of the real owner. Many illustrations might be given, but it is deemed unnecessary. The facts do not show exclusive care, control and management in Alexander, and do not show membership in him in fact or in law. Had he taken the auto out of the garage to exhibit it for sale, or had he driven it around on the streets with a view of selling it as agent, it is not to be held that he thereby would have control of it in such manner as to allege ownership in him. In fact, this would not constitute in him exclusive control, care and management of the property. These questions were very fully and thoroughly discussed by this court in Frazier v. State, 18 Texas Crim. App., 434, and Bailey v. State, 18 Texas Crim. App., 426. A great many cases have with uniformity followed these cases. Many illustrations are given in those cases showing the distinction or difference between custody and ownership under the idea of exclusive control, care and management. The authority to an agent to sell a horse or cow or automobile, while the real owner retained possession of the property, holds it on his own premises, would hardly constitute that agent the owner under the idea of exclusive control, care and management, and it certainly would not authorize him to be called the owner in fact or in law.
There is some contention that the bills of exception are insufficient to raise the questions suggested by them. These bills are somewhat indefinite, and are referred to largely with a view that the matters might not arise upon another trial.
There is one question that is urged with some degree of interest; that is, that the State was permitted to show that some time previous a party had driven an automobile to the town of San Angelo and placed it in a garage for the night, and one or more of its tires disappeared and subsequently appellant was found in possession of the tires supposed to have been taken from the car. Objection was urged to this on several grounds. The writer is of opinion that the bill is sufficient, but concede that it is not to raise the question of hearsay; it is contended this testimony was admissible because of the fact that appellant filed a plea for suspended sentence. We do not understand this evidence would be admissible upon that theory. Appellant's general reputation might be introduced under that plea where it becomes an issue in the case, or it might be proved, under the decisions, that conviction of offenses under complaint and indictment filed could be used for this purpose, even though they might be misdemeanors of no important magnitude, but none of those matters are shown by this bill of exceptions. The mere fact that tires disappeared from the auto at night and were subsequently found in appellant's possession after a considerable length of time would hardly be admissible to attack his reputation from any viewpoint. Former conviction, former indictments or complaints and *Page 64 informations may be admissible, but not the fact that appellant was found in possession of property supposed to be stolen long subsequent to the taking without any charges or conviction. We are of opinion that the evidence was not admissible, and upon another trial if presented as here presented it should be excluded.
The motion for rehearing is overruled.
Overruled.
PRENDERGAST, JUDGE, dissenting.