Pratt Minter v. The State, 26 Tex. Ct. App. 217

Willson, Judge. This conviction is for the theft of a hog. Considering the evidence in the most favorable light for the State, it shows that defendant shot and wounded the hog and pursued it for some distance, but did not kill or catch it. The hog was found bv its owner lying in a branch, alive but badly wounded. He drove it home and killed it and used the meat. It is clear from the evidence that the defendant never had actual, manual possession of the hog, and never converted it to his own use.

To constitute theft there must be a fraudulent taking of the property, and while there may be a taking of the property without actual manual possession of it, still the property must in some manner have come into the possession of the party accused of the theft, either actually or constructively, or he can not be said to have taken it. It has been held that killing an animal constituted a taking of it. (Hall v. The State, 41 Texas, 287; Coombs v. The State, 17 Texas Ct.

App., 258.) Where a party called up to him gentle hogs in their range and sold them to another person who was present, it was held that the seller’s acts constituted a taking, because he exercised control over the hogs by calling them up, and had them constructively in his possession, and converted them to his own use by constructively delivering them to the purchaser, who thereafter took actual possession of them. (Madison v. The State, 16 Texas Ct. App., 433.) So, where a cow was pointed out on her range and sold and constructively delivered to the purchaser, it was held to be a taking by the seller. (Doss v.

The State, 21 Texas Ct. App., 505.) It will be observed that in all these cases-there was a constructive possession of the property by the accused, and a" constructive interruption of the possession of the-owner of the property. In all these cases the accused for the time being, either in person or by an innocent agent, had the-actual control of the property; had it under his actual dominion, with the power to take it into his actual manual possession.

We have found no authority which holds that the mere wounding of an animal upon its range and the pursuit of it, without, capturing it, without bringing it in some way under the control and dominion of the party, is sufficient to constitute a taking. The decisions we have cited, we think, reach to the utmost limits upon this question, and to further extend the doctrine would not be warranted by precedent nor by reason. We are of the opinion, therefore, that this conviction is not sustained by the evidence.

While under the evidence the defendant might be successfully prosecuted for one or the other of the offenses denounced by articles 679 and 680 of the Penal Code, the facts do not establish that he is guilty of theft. Opinion delivered October 24, 1888. The judgment is reversed and the cause is remanded. Reversed and remanded►