Robert Morrow v. The State, 22 Tex. Ct. App. 239

Willson, Judge. The indictment alleges that John A. Lee owned the animal charged to have been stolen by the defendant. Lee testified that he was a stock holder in, and the general manager of the Kentucky Land and Cattle Company, a corporation organized under the laws of the State of Kentucky, and that he had exclusive control, care and management of all the cattle of said company in the State of Texas. # He stated that he knew nothing about the particular animal mentioned in the indictment, and did not know that it belonged to the said company.

The prosecution undertook to prove ownership of said animal to be in said company, first, by a bill of sale from Curtis, Atkinson & Lazarus to the Louisville Land and Cattle Company, conveying about four thousand five hundred head of cattle, ranging in King and Palo Pinto counties, in various marks and brands, among said brands the one with which the animal in controversy was branded, to wit, TOAD. This bill of sale was dated February 23, 1883, acknowledged for record September 21, 1885, recorded in Palo Pinto county September 16, 1885, before it had been authenticated for record.

Second, a bill of sale from Baylor & Lanham to Sam Lazarus, conveying the said vendor’s entire stock of cattle branded TOAD, dated August 15, 1882, acknowledged on the eighteenth day of August, 1882, recorded in Palo Pinto county September 4, 1883. Third, record of the mark and brand of W. K. Baylor and T. G. Kirbie, said brand being the said TOAD brand, recorded in Palo Pinto county September 27, 1880, said W. K. Baylor being the same Baylor who joined with Lanham in conveying said brand to Lazarus. This testimony was all admitted over the objections of the defendant.

One objection made to the first bill of sale was that it had not been filed in the cause three days before the trial, and notice of such filing given to defendant, and that its execution was not properly proved. A bill of sale is an instrument of writing which is permitted and required by law to be recorded in the office of the clerk of the county court. (Rev. Stats., Arts. 4331-4564.) It is such an instrument, therefore, as comes within the provision of

Article 2257, Revised Statutes, and may be read in evidence without proof of its execution, provided it has been filed among the papers of the cause at least three days before the commencement of the trial, and notice of such filing given to the opposite party or his attorney. In this case the bill of sale was not filed and notice of such filing given to the defendant or his attorney, so as to render the same admissible without proof of its execution. (Allison v. The State, 14 Texas Ct.

App., 402.) But the State proved the execution of said bill of sale by the witness Lee, who testified that he was present when the same was executed, and saw it signed by the vendors. This testimony was objected to by the defendant at the time it was offered, because it was secondary, the bill of sale showing upon its face that its execution was witnessed by one Robert McCart, who signed the same as a subscribing witness, and the State had shown no reason why the testimony of said subscribing witness was not produced. It seems from the authorities that defendant’s objection should have been sustained. (Sample v.

Irwin, 45 Texas, 567; Craddock v. Merrill, 2 Texas, 494; White v. Holliday, 20 Texas, 679 ; 1 Greenlf. Ev., Sec. 3, 572, 574.) Other objections made to this bill of sale as evidence are not, in our opinion, tenable. An unacknowledged, unrecorded bill of sale of property while it might not, under the law, vest the legal title in the vendee, would be evidence in a prosecution for theft of such property, to prove such ownership in said property, as the law in such case recognizes as sufficient.

It is only necessary in a prosecution for theft of property to prove that the alleged owner of the same had the possession, charge or control thereof. Such possession, charge and control constituted such person the owner for all the purposes of the prosecution, although in fact he may not be the legal owner. (Code Crim.

Proc., Art. 426; Penal Code, Art. 729.) As to the legal effect of said bill of sale, it conveys about four thousand five hundred head of cattle in certain marks and brands, to the “Louisville Land and Cattle Company,” not to the “Kentucky Land and Cattle Company,” of which latter company Lee testified he was the manager, etc. It does not convey any title or right to the cattle to the company represented by said Lee, unless said two companies are one and the same ; which is not shown to be the case.

It was, therefore, no evidence of ownership of said cattle in Lee or the company which he represented, to wit, the “ Kentucky Land and Cattle Company,” which company, for aught that appears from the record, may be an entirely different corporation from the “ Louisville Land and Cattle Company ” mentioned in the bill of sale. Nor does the bill of sale convey, or purport to convey, the TOAD brand, nor all of the cattle in that brand.

For aught that appears from the record, there may have been thousands of cattle in that brand running in the range in Palo Pinto county, not conveyed or intended to be conveyed by said bill of sale, and which were not the property of said company, and which were not in the possession of the said Lee. Hence, we say that the legal effect of said bill of sale was not to convey to said company all the cattle in Palo Pinto county branded TOAD, or any particular cattle bearing that brand.

Therefore this.bill of sale does not of itself prove that the Louisville Land and Cattle Company owned the particular animal named in the indictment in this case, even conceding that said bill of sale was properly in evidence, and that said TOAD brand was also properly in evidence and shown to belong to said company. There must be further proof, showing that this particular animal was one of the four thousand five hundred conveyed by said bill of sale, before it can be said that the allegation of ownership has been established.

As to the second bill of sale, it was objected to upon the single ground that it was not recorded until after the alleged date of the theft. This objection was not a valid one. As to the record of the TOAD brand, it was properly admitted, and was competent evidence to prove ownership, provided it was shown that said" brand, at the time of the theft, belonged to the alleged owner of the stolen animal or to the company which he represented. It is no where shown, however, that said Lee, or said company represented by him, ever owned said brand.

Said company owned some cattle in that brand, but did not own the brand itself, the same never having been transferred in the manner required by law, or in any other manner, so far as the proof shows. (Rev. Stats., Art. 4564.) Besides, it appears that this brand was recorded as the brand of W. K. Baylor and T. Gr. Kirbie, and it is no where shown that Kirbie ever at any time sold or transferred his interest in said brand. As far as is shown by the record, the legal title to the TOAD brand is still in Baylor and Kirbie.

We are of the opinion that the evidence fails to prove the allegation of ownership as to the particular animal mentioned in the indictment, and therefore the conviction is not sustained. There is not a particle of evidence, besides the bills of sale and the record of the brand, that the animal in question was ever in the possession of Lee, or that it was ever owned by the company he represented, and, as we have before seen, said bills of sale and record are wholly insufficient to establish the allegation of ownership. Because of the ipsufficiency of the evidence, the conviction must be .set aside.

Opinion delivered November 13, 1886. Several objections are urged by counsel for the defendant to the charge of the court, and to the refusal of the court to give special requested instructions. We shall not pass upon all these objections in detail, but will remark that in one particular we think the charge is erroneous, to wit: The jury are instructed that, if the defendant bought the animal in good faith, they should acquit. We have heretofore held such a charge to be error. (McAfee v. The State, 14 Texas Ct. App., 668; Clayton v. The State, 15 Texas Ct. App., 348; Prator v.

The State, Id., 363.) The objection made to the indictment is not a good one. It clearly appears that the trial was had upon the original indictment. Because the evidence of the ownership of the alleged stolen animal is insufficient to sustain the conviction, and because of the error mentioned in the charge of the court, the judgment is reversed and the cause is remanded. Reversed and remanded.