Lee Conner v. The State, 24 Tex. Ct. App. 245

Willson, Judge. It is alleged in the indictment that the defendant did fraudulently take from the possession of J. C. Benton one certain horse, the same being the corporeal personal property of the said J. C. Benton. Both the ownership and the possession of the horse are alleged to be in J. C. Benton. It is shown by the evidence that, on the day before the alleged theft, J. C. Benton, the owner of the horse, loaned the same to his brother D. H. Benton. On the morning of the day of the alleged theft, D. H. Benton turned the horse over to a man named Bull, who took said horse to a place which D. H.

Benton designated, and there hoppled out the horse. It had been agreed between D. H. Benton, Bull and others to set a trap to catch defendant stealing horses, as they had been informed by one Nickel that defendant had proposed to him to go into the horse stealing business with him. The plan agreed upon was to place J. C. Benton’s horse where the defendant and Nickel, who, by an understanding had with D. H.

Benton, Bull and others, was to keep with and act with the defendant, could and would be likely to find the same, and to keep a watch on said horse, so that when the defendant and said Nickel should take him, they could arrest the defendant in the very act of the theft. This plan to entrap the defendant, it appears, was not known to J. C. Benton, the owner of the horse, nor did he know for what purpose his brother had borrowed said horse.

Defendant took the horse, as it was anticipated' he would, while said horse was hoppled upon its accustomed range, but while it was in the immediate control and charge of said Bull, and while the bailment thereof to D. H. Benton still continued. It is insisted by counsel for defendant that there is a fatal variance between the allegation of possession and the proof, and we áre of the opinion that the position is a sound one. It is clear, we think, that, at the time of the alleged, theft, the horse was in the actual legal control, care and management of D. H. Benton under and by virtue of the bailment from J. C.

Benton to him. D. H. Benton was legally responsible to J. C. Benton for the horse. He did not hold the horse as the servant or employe of J. C. Benton, the owner. It can not be said that the horse was in the mere temporary custody of D. H. Benton. It was in the mere temporary custody of Bull, because he was controlling and using said horse under the direction of, and subordinate to the control of, D. H. Benton, the bailee and special owner of said horse. Under the facts of this case both the ownership and possession of the horse should have been alleged to be in D. H.

Benton, and necessarily the possession should have been alleged to be in him. (Willson’s Texas Crim. Laws, secs. 1358, 1373, 1373.) It can not be said that the horse was on its accustomed range and therefore in possession of the general owner, J. C. Benton. The horse was not loose -upon the range, but was hoppled and under the immediate surveilance of Bull. But if the horse had not been hoppled, being under the care, control and management of D. H. Benton, the special owner, the constructive range possession would be that of the special and not the general owner. (Willson’s Texas Crim.

Laws, sec. ,1373; Littleton v. The State, 30 Texas Ct. App., 168.) With respect to the question as to the consent of the owner of the horse to the taking thereof, we do not think there was any such consent as would protect the defendant in the commission of. the theft. The owner of the horse did not either directly or through another suggest the theft to the defendant, or induce the defendant to commit it. The facts of this case are unlike those of Speiden v. The State, 3 Texas Court of Appeals, 156, cited by Johnson for defendant. Johnson v. The State, 3 Texas Ct. App., 590, and Allison v.

The State, 14 Texas Ct. App., 122, and Pigg v. The State, 43 Texas, 108, are cases more in point. Opinion delivered November 12, 1887. As to the taking of the horse, we think the evidence sufficiently establishes it. Asportation of the horse was not essential to complete the theft. An actual manual possession of the property is not necessary to constitute theft under our code. (Willson’s Texas Crim. Laws, secs. 1266, 1267, 1293.) Because of the variance between the allegation and proof of possession, the judgment is reversed and the cause is remanded. Reversed and remanded.