Appellant persuasively argues that the case should be reversed because of the testimony of Douthit, the owner of the alleged stolen property, regarding the taking of the property. Appellant insists that Douthit's testimony fails to show that the property was taken without his consent.
That the owner of stolen property may recover it after it is stolen, or may be paid for same, and then on the trial testify that while the accused did not have his consent to take it when taken, — yet it would have been all right for the accused to have taken his property provided he had told him later, or later paid him for it, — in an evident effort to favor the accused, — does not remove a taking under the circumstances shown in this case from being theft. Without any dispute in the testimony, the evidence in this case shows that a load of cotton seed was taken from Lueders without Douthit's knowledge, and that it was taken to Hamlin, miles away in the nighttime, and there sold by this appellant early the next morning, appellant and his companion both giving fictitious names, which fact was accompanied by further falsehood as to where they lived, and it is further shown that the accused endorsed on the check given him for the cotton seed the fictitious name given by him in the sale of same, and that he presents this check for payment as the payee therein named, and when it is further shown that upon learning of this situation Douthit came to Hamlin and collected from the purchaser of the cotton seed the amount of the check, and takes it back home with him and puts it in the bank. We can not agree that such facts *Page 42 bring this case within the rules laid down by any of the authorities cited in appellant's motion. In Hunt v. State,231 S.W. 775, it is made to appear that at no time while the alleged owner of the property was on the witness stand was he asked in regard to his want of consent, and this court says: "Where the owner of the alleged stolen property is present and testifies before the jury, and fails to give direct and positive testimony as to his want of consent to the taking of the property, such want of consent will not be inferred from other circumstances in evidence."
Caddell v. State, 49 Tex.Crim. Rep., is also cited, and presents a case in which the owner was not asked in regard to his want of consent, and this court makes substantially the same statement as in the Hunt case above.
Flagg v. State, 51 Tex.Crim. Rep., is also cited, but is not on the point. In that case the owner testified positively that he was in the habit of letting Flagg have his mule to work. Flagg seems to have taken it off and sold it. On the trial for theft the accused wanted the jury told that if he did not have the fraudulent intent to appropriate the mule when it came lawfully in his possession, he could not be convicted of its theft. The case was reversed for the failure of the trial court to give such instruction.
There was no failure in this case to ask Mr. Douthit whether he gave his consent to the taking of these seed, and he positively said he did not give appellant his consent to haul off this load of seed and sell it at Hamlin. The record shows that something like two years prior to the date of this alleged theft, and at other times prior thereto, appellant had worked for Douthit, and it is apparent that Douthit was inclined to favor appellant all that he could under the circumstances. He testified that if appellant had taken his property, and had come to him later and told him about it, it would have been all right. We have no such state of facts here even if under the law such a proposition could avail one charged with theft of property of an owner who has never given his consent to the taking of the property.
Appellant did not take Douthit's property under any claim that he believed he had permission to do so, nor did he come voluntarily later to Douthit and inform him that he had taken it. The facts are far removed. Appellant and his companion took a load of cotton seed from Douthit's possession in Lueders, in the nighttime, and later in said night drove the car of seed to Hamlin, where they were waiting before seven o'clock the *Page 43 next morning to sell same. They both gave fictitious names, appellant saying his name was Simpson, and that he lived in Aspermont in Stonewall County, which was untrue. Appellant sold the seed evidently as his own and took from the purchaser a check payable to Simpson. He then endorsed the check in the name of Simpson and presented it to the bank for payment, and when payment was refused he tried to get parties to identify him. He was then arrested by the Hamlin authorities, and in this predicament he did telephone to Mr. Douthit, who came to Hamlin, went to the parties who had bought the seed and collected from them the price for which same were sold, and put it in his pocket. He did not inform the purchasers of the seed that it was all right with him for appellant to take his seed under the circumstances, and that he would look to appellant later for payment thereof.
It appears to us, as it must have appeared to the jury, perfectly plain that appellant fraudulently took from Douthit's possession the cotton seed in question with intent to appropriate them to his own use and benefit, and without Douthit's consent, and that only when confronted with certainty of prosecution and conviction for the theft, and apparently as the best way out of it, appellant called up Douthit and evidently threw himself on the tender mercies of Douthit, who seems to have tried to respond. We regret that we are not able to agree to any of appellant's contentions.
The motion for rehearing is overruled.
Overruled.