Appellant was convicted of misdemeanor theft, in the District Court of Potter County, and his punishment fixed at confinement in the county jail for one year.
A motion to dismiss the appeal has been made by the State, for the reason that no sentence appears in the record. While appellant was indicted for a felony, he was only convicted of misdemeanor, and in such case no sentence is necessary, the judgment performing the office of both judgment and sentence. *Page 312
From the record, it appears that in May, 1919, appellant purchased from one Clayton, the furnishings and personal property used in connection with a hotel in Amarillo. The record contains no list or inventory of the property so conveyed, but it is uncontradicted that at the time appellant bought said property, and took charge of the hotel, the wagon which constitutes the alleged stolen property, was then standing in an alley back of the hotel, and that it remained there until it was sold in August, 1919, under circumstances more fully detailed hereafter. The wagon was the property of one Puckett, who made said hotel his headquarters. Puckett was away when appellant took charge of the hotel, but in June, 1919, came to the hotel, and engaged a room and board from appellant, remaining until some time in July, when he went out to work in the harvest fields of neighboring counties. He did not remove or disturb the wagon while in Amarillo. When he came back to said place on the 10th of August, the wagon was gone, and its whereabouts or the name of the purchaser nowhere appear in the record further. It does appear, however, that on August 7, appellant was placed in the Potter County jail, for some offense, and that he needed money with which to employ counsel; and said fact became known to a woman, to whom he seems to have been engaged to marry, and she undertook to assist him to raise the needed funds. She testified that she went over to the hotel, after he was placed in jail, and that while she was there, a man came and offered $20 for the wagon in question, and that she had seen it standing out there in the alley for a good while, and thought it belonged to appellant; thereupon, she telephoned to the jail to know if he would take $20 for it, and the jailer's wife, after communicating with appellant, telephoned back that he would take that amount, and thereupon she sold the wagon to said party, receiving $20 from him, which amount she sent to appellant's attorney, to be applied on his fee for defending appellant. On the instant trial, and while a witness, appellant admitted receiving this telephone message at the jail, and further admitted telling the messenger that he would take $20 for said wagon, and that he knew the money was paid to his attorney for his benefit, but said that when he bought the personal property connected with said hotel, he thought the wagon in question was a part of that he acquired, and that when the wagon was sold, he believed it to be his property acquired in such manner. This was his only defense, except certain legal questions raised by his attorney.
The trial court charged the jury that if they found from the evidence that appellant bought said wagon from Clayton, or believed that it was included in the goods sold by Clayton to him, or if the jury entertained a reasonable doubt of said matters, appellant should be acquitted. This, we think, sufficiently presented appellant's defensive theory, and the special charges relative thereto, were properly refused. *Page 313
The property was in the legal care, control, and management of Puckett, the owner, when same was taken, even though he was temporarily out of the county. It was in a public alley, and nothing appears in the record showing that the owner had surrendered his possession thereof to appellant or any other person. The fact, if true, that he asked appellant if it was, or would be, in his way, and received a negative answer, would not operate as any transfer of possession or control over the property. Property lost or left out on the range or commons, is in the possession of the owner as far as the law of theft is concerned, until it appears affirmatively that in some way such possession has been superseded by that of another.
There was no question of bailment or embezzlement in the case, not a particle of evidence appearing to show that the wagon was held in any trust relationship either by Clayton or appellant; and there could be no such offenses committed as theft by bailee, or embezzlement, except such relation existed.
If the conviction had been for felony theft, a reversal would be made necessary, by reason of the fact that appellant's only connection with the taking would appear from the evidence to be that of an accomplice. The well known distinction between an accomplice and a principal in theft is, that the connection of the accomplice, and what he does, transpires before the commission of the actual crime by the one who actually takes the property. It appears that the agreement and assent of appellant to the taking of the wagon by the apparently innocent agent, was made and given before the wagon was sold, and thus appropriated by her for the use and benefit of the appellant. Our decisions are numerous, to the effect that in misdemeanor cases, facts which would show one an accomplice in a felony, constitute him a principal offender. See Branch's Criminal Law, Sec. 681. There seems to have been no exception to the court's charge for any failure to define "principals," and no special instruction was presented embodying such definition. This procedure is held necessary, in order to present error of this character in misdemeanor charges.
There are no bills of exception in the record, and the only contention as to the evidence, in the motion for new trial, is that if same shows guilt, it is of some character of unlawful appropriation of property, other than theft. We cannot agree with this contention. As stated above, appellant was communicated with over the telephone, by the woman who afterwards sold the wagon in question, a few minutes, or at most, a short time before the sale was actually made, and his willingness to accept the offered price of $20 for the wagon was then expressed by him. There was no contention that the woman thought, or believed, or had any idea that she had any right to sell the wagon as any other than the property of the appellant, and we think that his statement, made to the owner, and to other parties who inquired after the wagon when its loss was discovered, to the effect that he had sold the wagon, was in law, correct. It appears to be true *Page 314 that he was not bodily present when the wagon was sold, but in the present day, when by means of telephonic communications distances are annihilated, and parties acting together in certain enterprises, are brought practically face to face by the use of the telephone, we think a situation was fully shown and developed, which made him a principal in the appropriation of the wagon by such sale.
Finding no error in the record, the judgment will be affirmed.
Affirmed.
ON REHEARING May 5, 1920