I find myself wholly unable to agree to reverse this case for no other reason than that we are not satisfied with its facts. A jury has passed on the facts, and a fair district judge, — who saw and heard the witnesses testify, — as overruled the motion for new trial, and the record is not so devoid of evidence of guilt as to cause belief in a dispassionate mind that the verdict was the result of passion or prejudice.
Our Legislature wrote in article 706, C. C. P., that the jury, in all cases, are the exclusve judges of the facts, except in case it is by law provided that proof of a particular fact must be taken as conclusive of the existence of another fact, or it is by law provided that a certain weight is to be attached to certain evidence. Decisions almost without number uphold the doctrine of this statute, and its mandate is properly challenged only in cases where the testimony is so manifestly insufficient to sustain the verdict, — if believed, — as to make such verdict clearly wrong. The uniform holding is that this court only reverses on facts when they are either so slight as that we are forced to conclude that no unbiased person would be justified in concluding the accused guilty of the crime, or there is no testimony at all. These are statements of the law that are not subject to dispute, and are established by unbroken lines of decisions, as well as clear and fixed rules of law. *Page 276
The case before us is one of theft. To make it out the facts must show that the accused fraudulently took property of Purdom from his possession without his consent, and with intent to appropriate it, and to derive Purdom of its value. Concretely stated, appellant took two hogs belonging to Purdom from his possession and without his consent. He took them without any sort of right so to do, without any claim of ownership, real, fancied, or mistaken, with full knowledge that they were Purdom's hogs, that they were at Purdom's house, that they were not trespassing on appellant's premises, and that he had no right, title or interest whatever in said hogs. He took them with intent to deprive Purdom of said hogs, except on certain contingencies. To use appellant's own language on the witness stand on this trial: "I was going to take the shoats on home with me, and when he brought the corn back, and come over and settled with me, he could have the shoats." Expressio unius est exclusio alterius, hence appellant testified as plain as words could say that he intended to appropriate said hogs unless Purdom brought back to appellant certain rent corn, which Purdom claimed had been fed to appellant's own stock, and which appellant claimed had disappeared from the barn in which certain loads of rent corn had been put. As stated above, appellant did not set up any interest in or right to said hogs. There was no disputed question of ownership. There was no admitted debt, as seems true of some cases which are deemed without analysis to be analogous. Purdom had been a tenant on appellant's farm. He put into a barn about September three loads of rent corn, estimated to be about twenty bushels to the load. He stayed on the place until the end of the year and had removed to another place some half mile distant from the farm on which he lived during the year, which was located apparently about six miles from where appellant lived. It is perfectly evident that the two men, — appellant and Purdom, — had quarreled over a settlement. Appellant charged Purdom with taking a sink when he moved from appellant's place, and Purdom testified that some of his children had put it on the wagon without his knowledge, and that he took it back to appellant's place upon notification. Appellant testified that a load of his rent corn was missing. Purdom denied having gotten it for himself, but said appellant had some stock over there which he had fed out of appellant's rent corn. Further, and in reply to appellant's statement on the witness stand, which was as follows: "After I got the shoats loaded and started away, I told her to tell her dady that I was going to take the shoats on home with me, and when he brought *Page 277 the corn back, and come over and settled with me, he could have the shoats," Purdom testified that appellant always wanted to raise a racket wth him every time he saw him, and that he did not want to have any trouble with appellant, and that he was never going over to see appellant about the hogs in question. This testimony was before the jury who saw the witnesses and heard them testify, and also heard the court pointedly submit to them the question as to whether or not, under these facts, they believed beyond a reasonable doubt that at the time appellant took the hogs in question he intended to appropriate them. The jury were the proper arbiters as to what was appellant's intent, and not this court. In Dunn v. State,34 Tex. Crim. 257, the charge was theft of a horse, and proof was introduced to show that appellant took a horse, — at first to force the owner to offer a reward for its return, but failing to get the owner to offer a reward, Dunn caused or permitted said horse to be killed. The case was not a particle more flagrant a violation of the rights of another man than the one before us. This court held in the Dunn case as follows: "It appears that the purpose here was not for a temporary use, but to hold the property itself until he should be paid for its restoration to the owner, and to that extent he must have intended to have deprived the owner of its value, and to appropriate it, pro tanto, to his own use and benefit; that is, he proposed to appropriate to his own use some interest or value in the horse itself. Musquez v. State, 41 Tex. 226; McPhail v. State, 9 Texas Crim. App., 165. On this phase of the case the court charged the jury, if they believed the defendant took the horse with the intent to deprive the owner of the value of the same until such time as the owner might offer a reward for the return of the horse, and then to return same and get the reward, and that it was his intent not to return same, but to appropriate it to his own use, except in case a reward should be offered, that in such case defendant would be guilty the same as if he had taken the horse without any intention to return it in any event, or in any contingency. On the other hand, they were instructed, if they believed defendant took the horse, but that he did so for the purpose of holding the horse, and getting the reward should one be offered, and without any intention of depriving the owner permanently of the value of same, but with the intention of returning same and getting a reward, or of returning him without a reward, should none be offered, then to find defendant not guilty. These charges presented the issue on this branch of the case certainly as favorably to appellant as he could claim, and left the question *Page 278 of his intent at the time of the taking to be determined by the jury, and we think the evidence is amply sufficient to sustain their finding as to such intent." In so far as the governing principle on the point at issue is concerned, I can not conceive a case on facts more nearly identical. In the case at bar the trial court charged, as set out in our original opinion, that even though appellant took the hogs, yet if the jury believed, or had a reasonable doubt thereof, that he took them not to steal them but to bring about a settlement with Purdom, and without intention to permanently appropriate them, the jury should acquit, which is almost exactly what was charged in the Dunn case, supra, in which there was a conviction, and an affirmance by this court.
In Young v. State, 34 Tex.Crim. Rep., 30 S.W. 238, the facts show that Young, in broad open daylight, as in the case at bar, went to Ousley's house and found him not at home, — as did appellant in this case, — went into Ousley's house, saw a watch, picked it up, went out in the yard, held the watch up, and told a woman, who was washing in the yard, that he had Ousley's watch, had taken it because Ousley would not pay him what he owed him. These facts are again almost exactly as those before us. Young swore on his trial that he believed he had the right to take Ousley's watch to pay what Ousley owed him. The court in that case told the jury that if Young took the watch only to secure the debt due him, they should acquit him of theft. This is substantially what was told the jury in the case before us. In the Young case a verdict of guilty was affirmed by this court.
In Butler v. State, 3 Texas App., 403, the testimony showed that Butler took ten pounds of flour from a barrel of flour belonging to M, took it in the daytime and in the presence of witnesses to whom he said at the time that he had been working for M on Sunday and had gotten no pay, and was taking the flour to pay for his Sunday work. On his trial Butler asked a charge that if the jury found the flour was so taken, they should acquit, which charge was refused, and this court upheld the refusal of such charge, and affirmed the conviction.
In Brooks v. State, 69 Tex.Crim. Rep., where a watch was taken, as claimed by the accused, to compel the owner to pay for a bottle of whisky which he said the owner of the watch had broken, this court upheld the conviction, the theory of the accused having been submitted to the jury by the court in his charge. The court told the jury that if appellant took the watch merely for the purpose of holding it until *Page 279 he was paid for the quart of whisky that had been broken, or if they had a reasonable doubt thereof, they should return a verdict of not guilty. This court held that was a submission of appellant's side of the controversy, and that it submitted appellant's theory so that the jury might fully understand his claim, and that if the jury had believed him they would have acquitted him under this charge. Not having believed him, and not having accepted his explanation, this court affirmed the conviction in the case.
In Fannin v. State, 51 Tex.Crim. Rep., where a party drew a pistol on another and compelled the latter to pay money which Fannin claimed was owing to him, this court held that no man had a right to collect a debt by force and threats. In that case it was insisted, on behalf of the accused, that Smith was indebted to the accused, and that the latter had the right by force and violence to compel payment, and that in so taking Smith's money appellant commtted no robbery and did no wrong. In that case we said: "Extreme cases sometime make bad law. At any rate, we are not willing to lay down the proposition that if a man collects a debt by force and threats, and putting in fear, he will not be guilty of robbery. There might be peculiar facts and circumstances which would exonerate him, and which the jury might consider in mitigation of the punishment, but no man has a right, as we understand the law, to take the law in his own hands, and at the point of a sixshooter, putting his debtor in fear of his life or serious bodily injury, collect a debt, however just, and then defend against it, on the ground that the property was not fraudulently taken because appellant owed him the money, and would not pay him. This is more than a simple trespass, and it will be a dangerous doctrine to hold that a man can thus collect his debts. If it was specific property that appellant had a right to, under the circumstances he might use force to get or regain possession of same without being guilty of robbery; and, under the circumstances of this case, where appellant had no right to any specific property, the prosecutor owing him a debt for wages, the amount of which was even controverted, and he smply drew a pistol and made prosecutor pay him what he (appellant) claimed was due, we hold that this was not a good defense, and the court did not err in charging the jury as he did."
We have here a case in which this appellant took the property of another man and carried it six miles away to his home. We have quoted above what he said at the time he took it. We have also quoted what the owner of the property so taken said *Page 280 when he found his property was gone. We have quoted what the law says in regard to who is arbiter of disputed issues of fact. We have quoted what the judge told the jury, and there is no possible complaint of its absolute correctness as a rule of law applicable to this case. It seems to the writer that it would be a sad day when a court, whose utterances are supreme in criminal matters in this State, lays down a rule by which any man in this State, claiming an indebtedness from another, may go to the latter's premises and take into his possession such property as he may find there that suits him, and carry same to his home, and announce when he takes it into his possession that he is going to keep it until the owner of the property so taken shall come and bring back other property which the taker claims he has lost, and whose loss he merely attributes to the owner of the property which he has taken away with him. I can not conceive the fearful consequences that would seem legitimately to follow from such a course of conduct as would be thus approved and upheld by the opinion of this court. It is fundamentally an inherent wrong to say that because appellena thought there was not as much rent corn in his barn as had been there some months before, hence Purdom had gotten it wrongfully, and that he had the right to go to Purdom's place and by force if necessary take Purdom's property into his possession, with the approval of the opinion of this court of such conduct. Bloodshed and violence would inevitably follow.
The average man will not submit to having his property, about whose title there is no question, taken forcibly from his possession by another man upon no better ground than that the other man asserts a difference between the two as to a wholly different species and kind of property. If the average man knew that the courts were not going to protect his peaceable possession of his property against an invasion of this kind, by punishing the invader, and that he would be relegated solely alone to his own efforts to protect his property, it seems to me that a tremendous incentive would be given to the average man to take his shotgun and protect his property himself.
I respectfully record my dissent in this case.
ON STATE'S MOTION FOR REHEARING.