This is a conviction for the theft of a horse, the property of John Douglass. On the night of the 28th of August, 1884, there was preaching at an arbor which was situated about three miles from the residence of John Douglass. On that night Tip Douglass rode the mare to the arbor at which there was preaching, Tip was about nineteen years old, and at the time lived with his father. The indictment alleged that the mare was the property of John Douglass, and that the same was taken without his consent.
It was in proof that John Douglass did not consent to the taking. This being the case, was it error for the State to prove that Tip did not consent to the taking? We cannot perceive how defendant could possibly be injured by the proof, unless the facts were of such a character as to render it necessary for the State to prove that Tip Douglass did not consent to the taking of the mare. Hence we are led to a discussion of a question which lies back of this, and which is this: Under the facts of this case, was it required of the State to allege that the property was taken from the possession and without the consent of Tip Douglass f
At common law, as defined by Mr. Blackstone, larceny is “ the felonious taking and carrying away of the personal goods of another ” (4 Bl. Com., 229), and for .this offense the following form of indictment is held sufficient: That John Smith, late of, etc., in the county of Travis, three pairs of shirts of the value of nineteen shillings, of the goods and chattels of one John Brown then and there being found, feloniously did steal, take and carry away, against the peace and dignity of our lady the queen, her crown and dignity.
It will be observed that in this form there is no allegation that the property was taken from the possession of the owner, or that it was taken without his consent, or that the taking was with the intent to deprive the owner of the value of the property, and to appropriate the same to the taker’s use or benefit.
Upon a trial for larceny at common law, the prosecution was not required to prove that the owner did not consent to the taking. Such proof was made indirectly by the evidence which went to establish the corpus delicti,— merely that the property had been feloniously taken by some person. Bearing, therefore, upon the animus furandi, all of the facts and circumstances were looked to. Did the person commit a trespass by taking the property of another without authority? Was it his intention to permanently deprive the owner of the property, and to make the same his own ? These questions were all looked to and considered in order to determine whether the taking was felonious. And if in fact the prisoner had permission of the owner, or if he took the property through mistake, or upon an honest claim, the State first having made a case against him, he was held to make proof of these facts.
In this State horse theft being a statutory offense, as are all other
In whom must ownership and possession be alleged? This, of course, depends upon the facts of the case. If one person owned the property, and another had the possession thereof, an indictment which alleged that the property was taken from the possession of the latter, who was holding the same for the owner, and which alleged the property in the former, would be good. But in such an indictment the consent of each must be denied, and these allegations must be proved.
But suppose that the servant or minor son of the owner has merely the custody of the property, or that any other person has merely the custody of the property, must of necessity the indictment allege the possession to be in such servant, minor or other person? We think not. To constitute possession in the meaning of our Code the party must at the time be in the exercise of actual control, care or management of the property. (Penal Code, art. 129.)
Blow, under article 426, Code Grim. Procedure: “If 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.” But, let us suppose that A. owns the property, and that B. has the possession, charge or control of the same when taken, and that the indictment alleges that the property belongs to A. and that the same was taken from his possession, without his consent, would it be necessary under the above state of facts for the indictment to charge that the property was also taken from the possession of B., without his consent? We thinkso, for the very plain reason that the facts must correspond with the allegations of the indictment. In the supposed indictment it is alleged that the property was taken from the possession of A. This, however, would be false; for, when taken, B. had the possession of the property. Again, let us take the same state of facts, and let us suppose that the property belonged to B., and that the same was taken from his possession, without his consent, would it be required of the indictment to go further and allege that the property was taken from the possession of A., without his consent? We think not; because the Code declares that he who has the possession, charge or control of property is, for the purposes of criminal pleadings, the owner of such property. B. being in law the owner of the property because he has the possession, care
Our conclusion is that when property is in the possession, care or control of a certain person, but belongs to another when taken, the indictment must allege that such person was the owner thereof, and that the same was taken from his possession, without his consent. And if (which is not necessary) the indictment should allege property, possession and want of consent of the actual owner, still it must go further and allege the facts that it was taken from the possession of the party who had the possession, care or control of the property, and that it ivas taken without such person’s consent.
But, on the other hand, when a party has the possession, care or control of the property of another, if the indictment should allege such party to be the owner, and that it was taken from his possession, without his consent, the indictment need go no farther. It would be sufficient on these facts without any mention whatever of the actual owner. Mor under such an indictment would it be required of the State to prove the want of consent of the actual owner. This question is one of pleading, not of proof. Of course, as a general rule, if facts must be alleged they must be proved. But we are discussing the subject of when facts must be alleged; let us settle this, and the question of what proof must be made is of easy solution.
In the case in hand we hold that Tip Douglass was simply the servant of John Douglass; that he did not have the possession, care or control of the mare, but that she was merely in his custody. This being the case, it was not'necessary for the indictment to allege that the property was taken from his possession, without his consent. In fact it was not necessary for him to be mentioned in the indictment at all.
We have found no error in the judgment and it is affirmed.
Affirmed.
[Opinion delivered May 16, 1885.]
[Reporters’ Note.— Published in the regular order of its decision, the report of this case would have appeared at a previous page of this volume. But the reference to it in the opinion in the following case of Frazier, alias Robinson, v. The State, suggests that it shall immediately precede that case.]