In his motion for a rehearing appellant calls to our attention a matter relative to the indictment wherein the allegation of a want of consent of the owners of the property alleged to have been taken is claimed to be a want of a joint consent, and does not negative the want of consent of both or either of such persons.
The portion of the indictment complained of is set forth in the original opinion. We note that the same negatives the consent of the owners of the property in the following language:
"* * * and the said V. C. Smith, alias Van Smith, did then and there unlawfully and without the consent of the said L. S. Chamberlain and Ruth L. Chamberlain, the owners thereof, fraudulently convert said note and lien to his, the said V. C. Smith, alias Van Smith, own use and with the intent to deprive the said L. S. Chamberlain and Ruth L. Chamberlain, the owners thereof, of the value of the same."
We are cited to the case of Thomas Taylor v. State, 18 Texas App., 489 which, if applied to this case, would hold defective the allegation of a lack of consent as evidenced by the words "L. S. Chamberlain and Ruth L. Chamberlain," standing alone, without a further description or designation of such two persons. The opinion in the above case was written by Judge Willson, and again we find an opinion written by the same judge in the *Page 398 19 Texas App. 276, Williams v. State, which reads in part as follows:
"Appellant's proposition that where ownership is alleged in two persons the want of consent of both to the taking must be alleged and proven is unquestionably correct. (McIntosh v. The State, 18 Texas Ct. App. 285[18 Tex. Crim. 285].) We think this requirement was sufficiently fulfilled in this case. Ownership of the property was alleged to be in the firm of Mallory Allen, composed of S. T. Mallory and Jacob Allen. It was alleged that the property was taken without the consent of the owner. It would have been correct to have written owners, but, as it is, the word owner is critically correct when applied to the firm, and embraces each member of the firm."
We also find in the case of Albert Taylor v. State,62 Tex. Crim. 611, the following statement:
"The first question presented in appellant's brief is that the indictment should be quashed, the indictment alleging that the one head of cattle was the property of John Brown and L. Carr. It is insisted the indictment should have alleged that the property was taken without the consent of John Brown, and without the consent of L. Carr, or either of them. We do not think the motion is well taken. When the allegation is that the property was taken without the consent of Brown and without the consent of Carr, no additional allegation as to want of consent is necessary. Williams v. State, 19 Texas Crim. App. 276. The cases cited by appellant are not applicable in that in those cases it was not alleged that property was taken without the consent of each of the alleged owners. In this indictment the allegation is specific that the property was taken without the consent of each of them."
Again, in the case of Wesley v. State, 45 Tex.Crim. R.,73 S.W. 960, we find the following:
"The indictment is questioned by motion in arrest of judgment because it does not sufficiently negative the consent of the owners. It is charged that the ownership was in the firm of McMullen Marshall, consisting of T. N. McMullen and Ned Marshall. The proof shows there were two T. N. McMullens, and the McMullen mentioned in the indictment under the evidence was 'Jr.,' and that by reason of this fact there is a variance; and also that the general allegation that the property was taken without the consent of the owners is not sufficient; that the indictment should have specifically negatived the consent *Page 399 of each owner. The indictment is sufficient with reference to the allegation of want of consent of the owners. Williams v. State, 19 Texas Crim. App. 276."
We are aware of a contrary holding to the above in Scott v. State, 68 S.W. 680, and with such holding we are not in accord.
It is our holding herein that the allegation that such property was acquired "without the consent of L. S. Chamberlain and Ruth L. Chamberlain, the owners thereof," means what it says, and that is that such acquisition was without the consent of both of them, which means either of them, they being the owners thereof.
We think the motion should be overruled, and it is accordingly so overruled.