Appellant was convicted in the District Court of Tom Green County for the offense of horse theft and his *Page 584 punishment fixed at two years confinement in the penitentiary.
It appears from the evidence that a certain horse, saddle and bridle were taken from a ranch in Coke County, Texas on March 14, 1917 by appellant and that said property was recovered on the 16th of that same month near Big Springs, in Howard County about nine miles distant from the point where same was taken. The horse was found in a pasture about two miles from Big Springs, appellant having let down the fence near the gate and put the horse in the pasture over the fence which was fixed up afterwards; the saddle and blanket were found under a culvert in the road near said pasture and the bridle and a rope were found under another culvert not far distant. Appellant was arrested on said last mentioned date and went with the officers and showed them where the saddle and bridle were hidden. At some time after his arrest, but just when is not clear, appellant told the sheriff of Tom Green County, Mr. Allen, that he "just rode the horse up there and was going to send him back." On the way from the place of taking to Big Springs, appellant fell in with the witness Henkle who tried to trade for the horse in question but appellant refused and said the horse belonged to him and his sister. It appears that the appellant rode along by this witness' wagon for several miles, and at one point, as they were about to meet a car with several men in it, appellant rode off a short distance from the road till the car had passed, then came back and told the witness he was dodging officers.
Appellant made several objections to matters of procedure, but his main defense appeared to be temporary insanity and he introduced two of his sisters, his brother, his wife and two other witnesses who testified, in substance, that appellant had been thrown from a horse some years before and injured, and that since said accident he had not seemed right, was subject to spells and loss of memory, and they detailed several instances. Appellant himself testified that he remembered nothing of the taking of the horse in question, nor anything that occurred about that time or afterwards, until he came to himself in jail. Rebutting this, the State placed on the stand ten or a dozen witnesses, including the sheriff who arrested appellant and the deputy sheriff who accompanied him from Big Springs to San Angelo and who said they talked with him practically all the way down. Also the jailer and a number of other witnesses who gave in detail their familiarity and association with appellant at the time of, before and after the taking, and all of whom say they at no time discovered anything wrong with him mentally. Two physicians were also placed on the stand by the State and gave testimony adverse to appellant's contention, as to the effect of such injury as was claimed by appellant. One of these physicians had tended him at the time he received his hurt and he denied that appellant had received any such injury as he and his family claimed.
There arose on the trial a contention as to whether the *Page 585 ownership of the alleged stolen animal was correctly set out in the indictment and proven. The indictment alleged said horse as being the property of J.A. March, taken from his possession without his consent, etc. The proof showed that the animal belonged to the March estate and that Mrs. March, mother of J.A.; J.A. himself and several brothers and sisters of J.A., were the interested parties and owners thereof. All of said heirs, including J.A., lived in San Angelo. J.A. March had charge of the ranch properties, stock, etc., belonging to said estate and gave much of his time to looking after the same, having a foreman on this particular ranch named Thornton who was paid wages, and when J.A. was not there, said foreman looked after the ranch and the various interests there. On the day this horse was taken. J.A. March was in Ft. Worth at a convention, and Thornton had left the ranch and spent the day some twenty miles distant at San Angelo.
Appellant's first contention is that the court should have given his special charge No. 4, which is as follows: "You are further instructed as part of the law of this case, that if you find from the evidence, that John Thornton had the care, possession and control of the alleged stolen horse, at the date alleged in the indictment, or if you have a reasonable doubt thereof, you will acquit the defendant and say by your verdict not guilty."
The court, in his main charge, followed the usual form in such cases on the question of ownership; that is, that theft was the taking from the possession of another, or from some one holding same for him, without his consent, etc.; he also gave the following specially requested charge by the State: "At the request of the State, you are further charged that when property is owned jointly by two or more persons the ownership thereof may be alleged in the indictment to be in either of them and in like manner the custody, care and control thereof is in two or more persons jointly, the ownership and possession may be alleged in the indictment to be in either of them.
"So in this case, if you find that John Abe March was a joint owner of the horse in controversy it was not necessary for the State to prove the want of consent of the other joint owners, and further, if you find that the horse in controversy was in the joint care, custody and control of John Abe March and other persons, then it is not necessary for the State to prove the want of consent of such other persons" The giving of this charge is also complained of in this same connection.
Article 457 of our Code Criminal Procedure is as follows: "Where one person owns the property, and another person has the possession, charge or control of the same, the ownership thereof may be alleged to be in either. Where property is owned in common, or jointly, by two or more persons, the ownership may be alleged to be in all or either of them. When the property belongs to the estate of *Page 586 a deceased person, the ownership may be alleged to be in the executor, administrator or heirs of such deceased person, or in any one of such heirs. Where it is the separate property of a married woman, the ownership may be alleged to be in her, or in her husband. Where the ownership of the property is unknown to the grand jury, it shall be sufficient to allege that fact." It will be observed that it is specifically provided in said article that when property belongs to an estate, ownership may be laid "in any one of the heirs." There can be no question in the instant case but that the property belonged to an estate and that J.A. March, the alleged owner, was one of the heirs, and that said allegation in the indictment was in exact accord with the statute. Conceding then that J.A. March was the legal owner within the terms of our theft statute, and that his foreman Thornton, had the actual care, possession or control of the horse when taken, it will be at once seen by reverting to the first paragraph of said article 457, that in such case the ownership can be laid in either J.A. March or Thornton. The requested charge mentioned was erroneous. Thornton may have had a special ownership in said animal, not at all inconsistent with the general ownership of J.A. March, such special ownership resulting from his care, control and possession of the horse, but the jury finding him to be such special owner would not justify appellant's acquittal on that ground, for our statate is plain that in such case ownership, with its attendant rights, lack of consent, etc., may be alleged to be in either March or Thornton.
In the Bonner case, 58 Tex.Crim. Rep., cited by appellant, the general owner testified that he left the care, control and management of the cattle in question with Mr. Newland, and the proof showed that said owner was out of the State at the time the theft was committed. In the Jemison case, 79 Tex.Crim. Rep., 184 S.W. Rep., 807, also cited, the alleged owner Smith said that he would visit his farm occasionally, but that he knew nothing of the hogs on the place, that he had a Mr. Farmer out there who had had charge of the place for many years, who looked after the horses, hogs and rows that were on the place.
We are of opinion that the facts in said cases are much stronger in support of the special ownership, than in the instant case.
Regarding this contention, however, we wish to say further that unless there be some theory of the defense, borne out to some degree by testimony, based on a claim of consent, or right to take the property given by some person having some character of ownership of the same that we fail to see any concern over the question of ownership which could interest one accused of theft, further than to see that the alleged owner had enough right to such entitlement, to prevent any further carving in the transaction after the conviction or acquittal. In the absence of any claim of the consent of Thornton to the taking, what further concern is the ownership of the property to appellant except to demand that such character of ownership, *Page 587 general or special, be alleged and proven as will protect him against further jeopardy? None that we can see. Certainly, it would hardly be contended that if appellant be convicted of theft of a horse from J.A. March, general owner thereof, that he could ever be in danger of another conviction for theft of said horse from Thornton, the special owner.
Appellant further contends that the court's charge upon what is denominated in his brief "temporary taking" is erroneous. We suppose this theory of the defense was based on the testimony of Sheriff Allen and Deputy Green that the appellant at some time between his arrest at Big Springs and his incarceration at San Angelo, said that he intended to bring or send the horse back in a few days. The court's charge on this point was as follows:
"You are further charged that in order to convict the defendant of the crime of theft, you must be satisfied from the evidence, beyond a reasonable doubt, that he not only did appropriate the horse to his own use, as alleged in the indictment, but that the intention of the defendant to defraud the owner of the value thereof (if you find that such intent existed) existed at or before such taking. And in this connection, I further charge you, that if you should find that the horse alleged to have been stolen was taken by the defendant for his own temporary use and benefit and that, at the time he took said horse (if he did take same) he intended to return the horse to the said John Abe March, or if you have a reasonable doubt thereof, then the defendant would not be guilty."
Appellant asked a special charge, which was refused, which is as follows:
"You are further instructed that if you believe from the evidence that the defendant took the horse at the time and place alleged in the indictment, and after a temporary use of said horse, abandoned him with no intention of further using or appropriating him to his own use, that he would not be guilty of theft of said horse, or if you have a reasonable doubt thereof, then you will find him not guilty."
The special instruction does not present a correct proposition of law. The court's charge was correct. Under our law, any taking of property without the consent of the owner and with the present intent to deprive the owner of its value and to appropriate the same by the taker, is theft and it is uniformly held that asportation is not necessary in order to make out the offense; and with equal uniformity it is held that the return of the property after arrest or charge made of such theft is not a voluntary return within the contemplation of our statutes. Appellant's statement was not made until he was arrested for the theft, after he had ridden the horse ninety miles, and after he had claimed to the witness Henkle that it belonged to him and his sister. His intentions toward the property which were of any moment on this trial were only those in his mind when the property came into his possession. In the Carroll case,50 Tex. Crim. 485, which *Page 588 is the only case cited by appellant on this point, the accused was fleeing from pursuing officers who were on his tracks with hounds. He took a horse, rode him some miles, abandoned him and bought another continuing his flight. This court, in that case, properly held that the charge to the effect that if Carroll took the horse with no intention of permanent appropriation but with the intent to use the same temporarily, or if the jury had a reasonable doubt in regard to such matter they should acquit, was correct. This is substantially what was said in the instant case. True, the court, in this case, told the jury that if appellant took the horse for temporary use and intended to return it to the owner, or if they had a reasonable doubt thereof, they should acquit. Appellant is in no position to object to the court's substituting his intention to return the horse to the owner for the intention of abandonment that was referred to in the Carroll case, supra, for it was appellant's own statement that he intended to bring or send back the horse, which alone supports any theory in me instant case, other than straight theft, and he is bound by his own statement.
The court corectly told the jury that the burden was upon the appellant to make out his defense of insanity, and many cases have been approved by this court in which the charge instructed the jury that such defense must clearly be made out. There was no evidence on the part of appellant of the fact that he did not possess sufficient mind at the time of the taking of said horse, to know that such act was wrong and one that he ought not to do, except his own statement that he knew nothing of the occurrence.
We have carefully examined the record but find no error, and the judgment of the trial court is affirmed.
Affirmed.
ON REHEARING. June 27, 1919.