In upholding the action of the trial court in refusing the special charges set out in the original opinion, appellant insists that we were in error.
His contention is to the effect that if the animal was stolen by the appellant in the State of Oklahoma and afterwards brought by him into the State of Texas, the prosecution could not be maintained under the indictment upon which the conviction rests. It was not intended that the original opinion should deny the correctness of this proposition. On the contrary, the position is deemed sound.
Article 234 of the Code of Crim. Proc., reads thus:
"Prosecutions for offenses committed wholly or in part without, and made punishable by law within, this state, may be commenced and carried on in any county in which the offender is found."
This is a general provision of the statute of long standing, but Article 1431 and 1432 of the Penal Code deal specially with the offense of bringing stolen property into the state.
In Article 1431 of the Penal Code, it is declared that "if any person having committed an offense in any state, which if committed in this state, would have been theft, shall bring into this state any property so acquired, he shall be deemed guilty of theft and shall be punished as if the offense was committed in this state." It is also said that the offense may be charged to have been committed in any county act constituting such offense had taken place wholly within this state. in which the property may be brought, in the same manner as if the
Article 1432 of the Penal Code touching the same subject, reads thus:
"To render a person guilty under the preceding article, it must appear that by the law of the foreign country, state or territory from which the property was taken and brought to this State, the act committed would have been . . . theft."
The essential requisites of an indictment charging the offense of bringing stolen property into the State were considered by the Supreme Court of this state in the case of State v. Morales,21 Tex. 298. In that case the trial court held the indictment bad. The State appealed. The Supreme Court disposed of the appeal with this comment:
"The law of the foreign state becomes a necessary element in proving the guilt of the accused; and it ought, therefore, to be averred. The indictment should have averred that the stealing, taking, and carrying away, was, by the law of said state of Tamaulipas, criminal, and that it was theft." *Page 322
See also Vernon's Tex.Crim. Stat., Vol. 1, p. 921, and cases listed.
In the case under consideration, the indictment simply charged the theft of one head of cattle in Grayson County. It contains no count charging the theft of the animal in Oklahoma and its bringing into Texas. In the absence of such an averment, the conviction for bringing the stolen property into the state could not be had. This the learned trial judge recognized and embraced in his charge a paragraph in these words:
"If you should find and believe from the evidence beyond a reasonable doubt that defendant stole the animal in question, but you have a reasonable doubt whether he stole the animal in Texas or Oklahoma, you will acquit the defendant."
Ballard, the owner of the Durham bull in question, resided in the State of Oklahoma. His pasture was on the river front and was separated from the state of Texas by the Red River. Ballard missed the animal, which was afterwards found in possession of the appellant in the Elliott pasture in Grayson County. The bull after it disappeared had been castrated and marked. It was seen in Cooke County, Texas, coming unattended to the premises of a witness. When first seen, the animal was on the Texas side of the bank, about seventy-five feet from the Red River. Water was dripping from it at the time. It remained near the premises of the witness for a while and later disappeared. The Elliott family had pastures in Texas in both Cooke and Grayson Counties. According to appellant's testimony, he first saw the animal in the Elliott pasture in Cooke County, and he took it to the Elliott pasture in Grayson County. He described the animal as a stray bull; and said that he did not want it in his pasture; that he dipped the bull and altered it.
There is a well-established rule of law that when the evidence presents an affirmative defensive issue, it is incumbent upon the court, upon timely request, to embrace in his charge an instruction upon the defensive theory raised by the evidence. White v. State, 18 Texas Crim. App. 57; Rose's Notes on Tex. Rep., Vol. 5, p. 447. When, however, as in the instant case, there is no such affirmative testimony, but a mere theory that the State has failed to prove that the animal was not taken into appellant's possession in the State of Oklahoma, the language used by the trial judge in informing the jury that if there was entertained by them a reasonable doubt as to whether appellant stole the animal in Oklahoma, an acquittal should follow, was, in the judgment of this court, all that the occasion demanded. The nature of the evidence was negative and simply such as might have left the jury in doubt touching the beginning of appellant's connection with or possession of the stolen animal. Similar language has often been held sufficient to present the theory of alibi where the evidence touching that issue was of a nature similar to that in the present *Page 323 case. See Walker v. State, 6 Texas Crim. App. 577; Gallaher v. State, 28 Texas Crim. App. 247; Rollins v. State, 83 Tex. Crim. 343; Carter v. State, 56 Tex.Crim. Rep.. However, in cases where the accused relies upon the affirmative testimony, a more specific charge has often been required to present the issue. McAfee v. State, 17 Texas Crim. App. 132; Granger v. State, 11 Texas Crim. App. 456; Ballentine v. State,52 Tex. Crim. 369; Ayers v. State, 21 Texas Crim. App., 399; Tittle v. State, 35 Tex.Crim. Rep..
The other matters adverted to in the motion for rehearing having been sufficiently discussed and properly disposed of in the original hearing, a further comment upon them is pretermitted.
The motion for rehearing is overruled.
Overruled.
[Application requesting to file second motion for rehearing denied October 31, 1923. — Reporter.]