Appellant was tried and convicted of the theft of one head of cattle, the property of George E. Cowden.
The trial was in Wilbarger County. In the same county appellant had been convicted for the theft of one head of cattle, the property of some other person than George E. Cowden. The cattle were not taken in Wilbarger County, but in other counties of this State, and then carried into Wilbarger County together, and at the same time. The original thefts were not one transaction, the cattle being taken at different times and places. But as they were carried into Wilbarger County together, by one act, counsel for appellant contend, that having been convicted once for this act, he can not legally be convicted again in Wilbarger County, and pleaded the first conviction as a bar to this prosecution.
The contention of appellant is, that at common law theft is committed in every county through which or into which the stolen property is taken, and that our statute is not merely for the purpose of providing the rule of venue in cases of this kind, but it is declaratory of the common law, and that the jurisdiction or venue in Wilbarger County is sustained upon the ground that when appellant carried the cattle into Wilbarger County he committed another theft, a fresh theft, distinct from that committed by him in the first taking. The decisions of this court support this theory, and if they be correct, counsel's position is impregnable. Dixon v. The State, 15 Texas Ct. App. 480[15 Tex. Crim. 480]; Gage v. The State, 22 Texas Ct. App. 128[22 Tex. Crim. 128].
The ground upon which this theory is based is this: That as the right of property, as well as the right of possession, remained all the time in the owner, and as the possession of the thief is the possession of the owner, so long as the thief remains in possession of the property, every time he carries it into another county he commits a fresh theft. This doctrine is presented and discussed under three phases: first, when the property is stolen in a foreign country and brought into a State; second, when stolen *Page 582 in one State and carried into another; and third, when stolen in a county and carried into another county of the same State.
In England, if property be stolen in a foreign country and is brought into her kingdom, her courts do not take jurisdiction of the offense. But under the same state of facts (without statute) several States of this Union do. But the weight of authority is against the jurisdiction.
Again, when property is stolen in one State of the Union and taken into another, some of the States, in the absence of a statute, assume authority, try, convict, and punish the thief, holding that the States of the Union occupy the same relation to one another as do the counties in England. On the other hand, under the last state of case, the weight of authority is against the jurisdiction, holding that in regard to this matter the States of the Union bear the same relation to each other as foreign States.
We have given a condensed history of this legal fiction. When we look into the reasoning of the courts, we find that whether the property be stolen in a foreign country or in a State of this Union, and is carried into another State, it is the same. It is founded upon a fiction, pure and simple, namely, that theft, a fresh larceny, is committed in every county through which or into which the thief carries the stolen property; and we say, if this fiction be true in fact, the courts are correct which hold that where the property has been stolen in a foreign country and brought into a county of any State by the thief, the courts of such a State should prosecute to conviction the thief. If, when the thief brings the stolen property into a county of a State, he commits theft, why is it necessary to inquire into the laws of another State to ascertain whether he had committed theft in that State of the same property? Prove by the owner and the circumstances that the accused had taken his property fraudulently, without his consent, etc., and then prove that he had brought it into a county in Texas, and the case is made. Why? Because theft would be complete in such county if the property be stolen anywhere in the world, if in fact the thief commits a fresh theft by bringing the property into such county.
We deny, unhesitatingly, that a mere change of place by a thief while he remains in possession of the stolen property constitutes a new taking of the property, either as matter of fact or law. Suppose in fact and law he would be guilty of a fresh theft. What are the logical consequences? It is the guilty of the courts of this State to prosecute to conviction all thefts, and when a theft is committed the thief has no legal right to complain if he be convicted therefor. He has the right, the legal right, to object to being twice prosecuted for the same offense, but the State has the right to convict him for every distinct theft he may commit. If, therefore, he commits a fresh — a distinct — theft when he carries the stolen property into or through other counties than that of the original *Page 583 taking, he should be punished for each. To illustrate: A steals a horse in Lamar County, rides him through Fannin and Grayson, and lands with him in Dallas County. Now, under this fiction, he would be guilty of four distinct thefts of the same horse — one in Lamar, one in Fannin, one in Grayson, and one in Dallas — and should be convicted for each. But at common law, where this fiction had its origin, there could be but one conviction. Nor will it be contended that there could be but one conviction in Texas, or any State in which this fiction is recognized. This fact demonstrates that this doctrine is sheer fiction, invented by the common law to settle the question of venue in cases of larceny, and that the purpose of our statute is the same. The plea of former conviction was without merit.
We have carefully considered the facts in this case with reference to the motion for a continuance. The diligence was sufficient. The testimony of the absent witnesses was not improbable. It was consistent within itself, and was not rendered by the evidence for the prosecution improbable; and if it had been placed before the jury in this case an acquittal would have been reasonable. For the error indicated, the judgment is reversed and the cause remanded.
Reversed and remanded.
Judges all present and concurring