Ream Gardiner v. The State, 33 Tex. 692

Walker, J. There is no conflict in the evidence of this case. The appellant was indicted in the district court for stealing a horse. Much of the evidence consists in what he said himself of the transaction. The account he gave of the matter was plausible and reasonable, and showed no fraudulent intention in taking the animal. If the State put his declarations in .evidence it was hound by them, unless they are proven to *be false. (See 7 Tex. R., 71, and 26 Tex.

R., 210.) The statute (Paschal’s Digest, Art. 1688) says: Ho person shall in any case be convicted of any offense committed before he was of the age of nine years; nor of any offense committed between the years of nine and thirteen, unless it shall appear by proof that he had discretion sufficient to understand the nature and illegality of the act constituting the offense. The evidence shows that the boy who appeals here had not, at the supposed commission of the offense, attained his thirteenth year, and the statement of facts shows no effort on the part of the State to prove his discretion.

Had the appellant been of the years of discretion, the evidence does not show that he had any felonious intent in taking the animal. He appears to have been sent by his mother to hunt for a horse that had strayed from her. The boy found the horse which he is accused of stealing, and appears to have thought the horse was that of his mother, which had been gone for some eighteen months. When told that the horse belonged to Werner he said he would see, and would not take the horse unless it belonged to his mother.

He afterwards appears to have loaned the horse somewhat heedlessly to a friend, to ride to an adjoining county; and the horse was" found in the possession of his friend and traced back to his possession; and he gives an account of the, matter which falls very far short of making it a case of larceny. Appellant’s counsel appears to have mistaken the law in objecting to the venue. Had the horse been stolen in one county and taken into another county of the State, an indictment could have been preferred in any county where the asportation of the animal had been carried on.

The .judgment of the district court is reversed and the cause dismissed. Reversed and dismissed.