49 S.W. 387

JONES
v.
STATE.

Court of Criminal Appeals of Texas.


February 1, 1899.

Appeal from district court, Ellis county; J. E. Dillard, Judge.

Jesse Jones was convicted of theft of a horse, and he appeals. Reversed.

W. H. Fears, for appellant. Robt. A. John, for the State.

HENDERSON, J.

Appellant was convicted of the theft of a horse, and his punishment assessed at confinement in the 
penitentiary for a term of two years; hence this appeal.

The only questions we deem necessary to be considered are the charge of the court on the question of
appropriation, and whether or not the evidence is sufficient to sustain the verdict. The indictment is in 
the ordinary form of an indictment for theft. The proof shows that the possession of the property was 
acquired by a hiring, and the theory of the state was that the hiring was a false pretext, and that 
appellant then intended to deprive the owner of the value thereof, and to appropriate the same to his own
use and benefit, and that he did so appropriate it. To go more into the details concerning the evidence on 
this point: The testimony for the state tends to show that appellant, in the morning of the 10th of 
December, 1897, applied to prosecutor, Pryor, who was a livery stable keeper in Ennis, to hire a saddle 
horse. Appellant stated at the time that he desired to go into the country to see a negro who lived on a 
large farm, some five or six miles from the town. Prosecutor, Pryor, asked him the name of the negro, and 
he stated that he did not remember the name; that he (appellant) was a stranger there; that the negro lived
on a large farm. Prosecutor then asked him if it was Jim Madison, who lived on Getzendaner's place. 
Appellant said, "Yes." This witness stated that the farm of Getzendaner, on which Jim Madison lived, was 5
or 6 miles in a southeast direction from Ennis, and that Corsicana, where appellant was subsequently found 
with the horse, was 20 miles in a southeast direction from Ennis. Appellant, after negotiating for the 
horse, went up town, and in a short time came back, with a bottle of whisky in his pocket. He appeared to be
drinking some, but not drunk. He left the stable, riding the horse, about 8:30 a. m. About 2 o'clock on 
that same evening, one Bob Sizemore, who was acquainted with the horse, saw defendant with the horse at 
Corsicana. He accosted defendant, and asked him where he got the horse. He replied that he got him in Ennis. 
Witness then asked him if he was going back to Ennis, and defendant said, "Yes," that he was going that 
evening. Appellant was seen riding up and down the street for some hour or two after this. By one witness 
he was seen near a wagon yard where some horse traders were,

Page 388

who asked him if he did not want to trade the horse, and witness stated that he did not hear what passed 
between them. The only expression he heard was from appellant, who stated that the sorrel mare was the only 
one he would have, pointing to one of the horses of the parties, and then rode off. It appears that 
appellant was under the influence of liquor while at Corsicana. After this he had an altercation at the 
wagon yard, and received a stab in the shoulder, and went or was taken to a drug store; and the horse was 
taken by Sizemore, and returned to the owner, at Ennis. It was further shown that appellant was a stranger
at Ennis, and had only arrived there the night before, having come from the Indian Territory. According to
his account, he was on his way from Ardmore to his former home, in Freestone county, and had stopped at 
Ennis to see if he could get a place to work; had heard of the negro Madison, and intended to go out there
to see if he could get a home with him, and hired the horse for that purpose. He further testified that he
did not remember what occurred; that he got drunk after leaving the stable at Ennis, and did not know what
took place at Corsicana; that he intended to return to Ennis with the horse on that evening. This is 
substantially all the testimony bearing on the case.

It has been held by this court that, under an ordinary indictment for theft, proof can be made, under 
article 861, Pen. Code 1895, of theft by means of a false pretext. Dow v. State, 12 Tex. App. 343; Morrison
v. State, 17 Tex. App. 34; Atterberry v. State, 19 Tex. App. 401. In such case the proof must show that the
obtention of possession was by means of some false pretext made for that purpose, and that the party had 
the intent at the time to deprive the owner of the value thereof, and to appropriate the property to his own
use, and that he did so appropriate it. Measured by this rule, it does not appear to us that the proof 
shows these constituent elements of the offense beyond a reasonable doubt. So far as the evidence discloses,
there was no positive proof of an actual appropriation of the property. It is true this proof can be made by
circumstances, and the party may convert the property to his own use while he still has it in possession, 
not having parted with it; but in such case the proof should establish the fact of the appropriation beyond
a probability or suspicion. So far as we are advised from the testimony, there was no concealment on the 
part of appellant when found at Corsicana as to where he got the horse, and his conduct there was not 
inconsistent with his trusteeship and his intent to restore such horse to the owner. Furthermore, we do not
believe the evidence establishes beyond a reasonable doubt that, when appellant hired the horse at Ennis, 
he then had the present intent to steal the same. The most that can be said is that instead of going to 
Getzendaner's farm, some 5 or 6 miles distant, which was in the same direction as Corsicana, he went to 
Corsicana, some 20 miles distant. Appellant may have been guilty of lying when he procured the horse as to
his purpose in making the hiring. He may have apprehended that Pryor would not so readily hire the horse for
the purpose of going to Corsicana as going only a few miles in the country, and so have made a false 
statement, not for the purpose of stealing, but for the purpose of hiring. In our opinion, the evidence in
this regard fails to disclose his fraudulent intent at the time with that degree of cogency required by the
law.

In this connection we would also call attention to the court's charge on this subject, which was excepted 
to. The court, perhaps, in this charge, sufficiently instructed the jury with reference to the intent at the
time he procured possession of said animal; but he does not appear to have instructed the jury pointedly 
with reference to the appropriation, but confined the instruction merely to an intent to appropriate. The 
jury should have been distinctly instructed as to the appropriation by appellant. For the errors discussed,
the judgment is reversed, and the cause remanded.

DAVIDSON, P. J., absent.