This case is before the court on appellant's motion for rehearing. After quoting a portion of the original opinion, in which the propriety and legality of certain expressions regarding allegation and proof of ownership and possession, was questioned, appellant cites a large number of authorities to show that we were in error in our original opinion. As will appear later herein, the original opinion will be modified because same was not in conformity with the facts in the instant case. We have examined at length the authorities set forth in said motion as supporting the correctness of appellant's contention that the trial court should have given his special charge quoted in the original opinion, to the effect that if one Thornton was in the care, control and management of the horse *Page 589 in question at the time it was taken, they should acquit the accused; and further, that the court was in error in a special charge given at the request of the State with regard to the joint ownership and possession of said Thornton and John A. March, who was the real owner. We give below a condensed statement in most of the cases cited by appellant:
House v. State, 19 Texas Crim. App., 238. The real owner lived in Yorktown; was aged and infirm, and paid no attention whatever to his tattle. Held: that ownership and possession were properly laid in his son-in-law who had the actual care, management and control of same.
Atterberry v. State, 19 Texas Crim. App., 406. Thomas and his brother owned certain cattle jointly. Thomas testified he had the exclusive care, custody and control of same. Held: this established ownership under our statute. Not necessary to allege or prove his brother's want of consent.
Thurmond v. State, 17 S.W. Rep., 1097. Reversed solely because of a defective indictment for theft of property from a corporation.
Wright v. State, 34 S.W. Rep., 274. Theft of diamond ring given by parent to minor child, same kept in box to which only minor had key. Held: would be better practice to have two counts, one charging ownership in parent, and one in minor child. Reversible error in failure to charge on explanation of possession of recently stolen property.
Bailey v. State, 18 Texas Crim. App., 426. Theft of horse belonging to John Douglass; ridden to church by nineteen year old son on night of theft; taken from church. Held, ownership and possession properly laid in John Douglass. Not necessary to allege or prove possession or want of consent of son.
Bailey v. State, 20 Texas Crim. App., 76. Property charged to have been taken from possession of owner, W.H. Perkins. Proof showed he had been away from home two months; before leaving had placed his cattle in charge of others to look after, feed and care for; Held, fatal variance.
Briggs v. State, 20 Tex.Crim. Rep.. Alleged owner was a lunatic, not able for years to attend to business; lived with and cared for by her father. Held: ownership and possession should have been laid in the father.
Littleton v. State, 20 Texas Crim. App., 175. Alleged owner was very old man. Evidence showed that his son-in-law held the cattle on shares, and had for some time had exclusive control and management of same. Reversed for variance between allegation and proof.
Hall v. State, 22 Texas Crim. App., 632. No fact stated. Simply held that evidence showed the alleged owner was not in possession, and there was variance.
Alexander v. State, 24 Texas Crim. App., 127. One Wilson was the alleged owner. Fernandez had the care, management and control. *Page 590 Both testified that Fernandez did have such actual care, control and management. Allegation of ownership and possesson in Wilson. Held, not supported by proof.
Massey v. State, 19 S.W. Rep., 909. Allegation that cattle were taken from possession of Roach, who was holding same for Caldwell, the owner. Proof showed Roach at one time had Caldwell's cattle, but not for a year before the alleged theft. Held, verdict unsupported by the evidence.
McKnight v. State, 70 Tex.Crim. Rep., 156 S.W. Rep., 1188. Cattle of Pritchard were placed in pasture of Jeeter in May and stolen in October. Jeeter was to look after and care for the cattle, and to be paid twenty-five cents per head per month. Ownership and possession were alleged in Pritchard. Held, erroneous.
Honea v. State, 56 Tex.Crim. Rep., 119 S.W. Rep., 851. Mrs. Donnell owned a farm ten or twelve miles from her residence. Keeter was her tenant on same. In August she left the State for seven weeks; before leaving she sent her horses down to Keeter to keep for her while she was gone; he was to exercise such care and control as that no one was to use them; they were taken while Mrs. Donnell was out of the State. Held: possession should have been alleged in Keeter. This significant statement appears in the opinion of the presiding judge of this court: "It will be noted that there was no relation of servant and master between Keeter and Mrs. Donnell so as to retain possession in her."
Bonner v. State, 58 Tex.Crim. Rep., and Jamison v. State, 79 Tex.Crim. Rep., 184 S.W. Rep., 807, cited, were both reviewed in the original opinion.
Branch's Ann. Code, Sec. 2447, is also cited and referred to in support of said position of appellant. Thereunder is cited by Mr. Branch the case of Bailey v. State, 50 Tex.Crim. Rep.. In that case Fain owned a farm several miles from his residence, on which farm he spent about half his time with his tenant Mitchell. A yearling was stolen at night. It was contended by the accused that the special ownership and possession was in Mitchell, and a charge very similar to the one in the instant case was requested, and a charge very similar to one given in the instant case was given. This court, speaking through Judge Henderson, said:
"Appellant raises the question of variance between the allegation of possession and ownership in the indictment, and the proof. The allegation in the indictment is that the animal was taken from the possession of S.C. Fain. Appellant maintains that the proof shows, if the animal was taken at all, it was taken from the possession of Will Mitchell. Appellant not only raises the question of variance as to the testimony, but asked the court to instruct the jury, in effect, if they belived that the animal was taken from the possession of Mitchell and not Fain, to acquit appellant. Instead thereof, the court instructed the jury that the allegation in the indictment charging *Page 591 possession of the alleged stolen animal in S.C. Fain would be supported, even though the evidence may show or tend to show that his possession was a joint possession with the witness, W.H. Mitchell. Appellant insists that this was erroneous. In our opinion the proof showed that the animal belonged to prosecutor Fain; that Mitchell was his tenant and the animal was kept on the place and was looked after by Mitchell; that the owner, Fain, also looked after the animal. Fain lived on the place about half his time. In Duncan v. State, 91 S.W. Rep., 572, we held that article 445, Code Criminal Procedure, did not relate alone to a technical joint ownership or joint possession, but referred as well to a case where the parties exercised a joint or common possession of the property. This case appears to have followed Cogshall v. State, 58 S.W. Rep., 1011; Tidwell v. State, 45 S.W. Rep., 1015; Coates v. State, 31 Tex.Crim. Rep.; Scoville v. State, 81 S.W. Rep., 717; we do not believe there is any variance, nor do we regard the court's charge as erroneous. We do not believe that the court was called on to give appellant's special requested instruction on the subject of possession. Duncan's case, supra, was decided since the case of Long v. State, 39 Tex.Crim. Rep., and reviews the authorities on the subject of joint ownership and construes article 445. Under that construction we hold that where the fee of an animal alleged to have been stolen is in A, and B is a tenant of A, and both exercise care, control and management of said animal that they are in effect joint possessors of said property, and the possession can be alleged in either."
A very marked similarity will be observed in the instant case and the case just cited, and we are unable to see any difference in the legal questions involved.
In Graves v. State, 42 S.W. Rep., 300, one Graves, father of appellant therein, was alleged to be the owner and possessor. He was away for two months, and had hired one Tate to look after his cattle while he was away. The alleged theft occurred during his said absence. It was contended that possession at least should have been alleged in Tate. Judge Hurt said: "Tate was simply the servant of Graves, and did not have that possession, management and control of the property as would require the indictment to charge possession in him." The case was affirmed.
In Bryan v. State, 54 Tex.Crim. Rep., a nineteen year old boy had charge of the alleged stolen animal. Ownership and possession were alleged in his father. In holding this to be correct, it is stated in the opinion: "He was under the direction and control of his father, and in so far as the statute in regard to ownership is concerned, merely acting as a servant or employee."
Our statement in the original opinion as follows: "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 and control of the horse when taken, it will be at once seen by *Page 592 reverting to the first paragraph or said article 457, that in such case the ownership can be laid in either J.A. March or Thornton," was inaccurate and uncalled for by the facts, and same will be withdrawn, and the following inserted in said opinion instead: "It will be seen from the facts that Mr. Thornton might have had possession, care and control of the horse; same was merely that of a servant and employe of J.A. March, the real owner, and was joint with that of said March." We further observe that March testified: "I have been manager of this March ranch since the fall of 1911, practically six years. As manager of the ranch during March, 1917, I stayed out at the ranch and worked some. I stayed out there about half the time, . . . I sell and trade the stock off the ranch, . . . . I gave my personal attention to the ranch and its management during the time inquired about." Both March and Thornton testified that Thornton worked for wages. Evidently his relation to the property was that of servant and employe under the imediate direction of the real owner, who was a joint possessor. The requested charge and facts of the case are almost identical with that of Bailey v. State,50 Tex. Crim. 398, supra.
Complaint is made of expressions in the original opinion to the effect, substantially, that one accused of theft has no further interest in the allegation of ownership than to see that same is sufficiently alleged to protect against a second prosecution for the taking of such property, unless there be claim of consent to the taking. It is said by Judge White in Frazier v. State, 18 Texas Crim. App., 443, which is cited by the appellant, in substance, that it is only necessary to allege the possession and want of consent in the proper possessory owner, and the court says in that connection: "If, under such circumstances, the accused has the consent of the real, actual or general owner, then it is his business to show it. For, `on the trial of any criminal action, when the facts have been proved which constitute the offense, it devolves upon the accused to establish the facts and circumstances on which he relies to excuse or justify the prohibited act or omission.' (Penal Code, Art. 51.) The State was not bound to allege, neither was it bound to prove, the want of consent of the real owner." We do not think our opinion is subject to the criticism that it shifts the burden of proof in a proper case, or in any way changes the rules under the former opinions of this court. We have taken pains to give enough of the facts of most of the cases cited in the motion and relied on by the appellant, to show that same were wholly different from the facts of the instant case. It is not claimed that appellant in this case laid any sort of claim to the consent of anyone to take the horse in question. Both Thornton and March were away from the ranch on the day the horse was actually taken. Thornton came back that night, and March seems to have returned either the next day or the day following. Under the facts both appear to have a joint right of possession, and March was the real *Page 593 owner. The allegations in the indictment were sufficient and met by the proof.
The original opinion will be modified as herein indicated, and the motion for rehearing overruled.
Overruled.