FRANK HAYS, ALIAS AMOS HAYS, V. THE State.

No. 6583. Decided January 11, 1922.

Theft of Cattle-Ownership-Possession-Special Owner-Requested Charge. Where, upon trial of theft of cattle, it appeared from the record on appeal that there appeared a variance between the allegation of ownership and possession and the proof, and that the alleged owner was never in actual possession of the alleged stolen property, yet such possession was proved to be in another, the refusal to give the requested charge on this phase of the case was reversible error. Following Frazier v. State, 18 Texas Crim. App., 442, and other cases.

Appeal from the District Court of Matagorda. Tried below before the Honorable M. S. Munson.

Appeal from a conviction of theft of cattle; penalty, two years imprisonment in the penitentiary.

The opinion states the case.

Styles, Grause & Erickson, for appellant.—Cited: Bryan v. State, 49 Texas Crim. Rep., 196; Odell v. State, 44 id., 310; Mangum v. State, 38 id., 331; House v. State, 19 Texas Crim. App., 238, and cases cited in opinion.

R. G. Storey, Assistant Attorney General, for the State.-Cited Fleischman v. State, 231 S. W. Rep., 397.

HAWKINS, JUDGE.-Conviction is for theft of cattle. Punishment two years in the penitentiary.

The indictment charges theft of one head of cattle from the possession of R. J. Sisk on or about October 8th, 1920. In May 1920 appellant was the owner of a cow which was not in his possession, but was under the actual care, control and management of Will Thompson. running with the latter's cattle in his pasture and adjoining premises some fourteen miles from where appellant was then living. Some time in May he sold this cow to Sisk for twenty dollars, ten dollars cash, the balance to be paid when the animal was delivered, appellant telling Sisk she was at Thompson's place. A bill of sale was executed and delivered to Sisk at this time. A few days later appellant told Sisk he had brought the cow from Thompson's place, and had her in a little pasture at Huebner's where appellant was living. Sisk was invited by appellant to go there and see the animal but declined and paid the balance of the purchase price. Sisk, believing the cow was in the Huebner pasture, asked appellant if it would be all right to leave her there a little while, and was told it would be. As a matter of fact, appellant had never moved the cow. She remained in Thompson's pos

session until some time in October when appellant sold her to another party. Appellant went to Thompson's place without Thompson's knowledge or consent and actually made delivery of her on the second sale. Sisk, the first purchaser, never saw the animal, and never had possession of her. In the fall of 1920 he began to make inquiries, and upon discovery of the subsequent sale this prosecution was instituted.

It is insisted that the conviction cannot stand, because the proof fails to support the allegations in the indictment. A number of special charges were requested on the issue of "possession," calling the trial judge's attention to appellant's contention, all of which were refused. We quote from Frazier v. State, 18 Texas Crim. App., 442, as follows: as the criterion in determining how ownership should be alleged, it should first be ascertained who was in 'the exercise of actual control, care and management,' at the time the property was taken. If the actual owner, then 'the possession' was in him, and should be so alleged, though he may have agents or servants using the property at the time in subordination to his possession. But if the 'actual control, care and management, at the time of the taking is in another, then this other is the special owner in 'possession' and it is his possession which has been despoiled, and the property should be alleged to be his and taken from his 'possession' and 'without his consent,' without any mention of the actual or general owner-because the property was not 'taken' from the latter's 'possession.' What constitutes the control, care and management of property must depend upon the circumstances of the particular case, in many instances."

In support of the proposition above announced we cite, Tinney v. State, 24 Texas Crim. App., 120, 5 S. W. Rep., 832; House v. State, 19 Texas Crim. App., 227; Bryan v. State, 49 Texas Crim. Rep., 196, 91 S. W. Rep., 580; Thurmond v. State, 30 Texas Crim. App., 540, 17 S. W. Rep., 964. Appellant cites many other cases in his brief, but we deem it unnecessary to include all of them in our opinion. The State, through the Assistant Attorney General, concedes that a variance arose between the allegation and the proof, and that it was error to refuse to submit to the jury the question of possession.

The judgment of conviction must be reversed, and the cause remanded.

Reversed and remanded.

ROY CUNNINGHAM V. THE STATE.

No. 6457. Decided January 11, 1922.

1.-Theft of Turkeys-Felony-Value-Rule Stated-Bill of Exceptions.

It has long been the settled rule in this State that value, as it relates to stolen property, is the market value of the property at the time and place of taking, if it has a market value; and if not, the value would be the amount it would cost to replace it; but when improper measure of value is resorted to in the proof, this court is without power to correct it in the absence of objections at the time with proper exceptions reserved. Following Ramon v. State, 98 S. S. Rep., 872, and other cases.

2. Same-Case Stated-Sufficiency of the Evidence-Value-Bill of Exceptions.

Where an attempt is made to raise in this court for the first time the question as to the sufficiency of the evidence to justify a finding that the property was of the value of fifty dollars or over, the same cannot be considered without a bill of exceptions, and in the instant case the question was not even suggested in the motion for new trial, and there is therefore no reversible error.

3.-Same-Rehearing-Value of Stolen Property-Asportation.

Where appellant contended in his motion for rehearing that the value of the stolen turkeys was under $50 when appropriated, but the criterion is the value of the property at the time of the fraudulent taking, and the evidence showed that the alleged property was of or over the value of $50 at the time of the taking, there was no reversible error. Asportation of the stolen property is not necessary.

Appeal from the District Court of Hamilton. Tried below before the Honorable J. R. McClellan.

Appeal from a conviction of theft of turkeys over the value of $50; penalty, two years imprisonment in the penitentiary.

The opinion states the case.

Scott & Sparks, and J. M. Parker, for appellant.-On question of value: Johnson v. State, 122 S. W. Rep., 877; Martinez v. State, 16 Texas Crim. App., 122.

R. G. Storey, Assistant Attorney General, for the State.

HAWKINS, JUDGE.-Conviction was for felony theft of turkeys. Punishment two years in penitentiary.

The record is before us with no bills of exception. An attempt is made to raise in this court for the first time the question as to the sufficiency of the evidence to justify a finding that the property was of the value of fifty dollars or over. This question was not even suggested in the motion for new trial.

It has long been the settled rule in this State that "value" as it relates to stolen property, is the market value of the property at the time and place of taking, if it has a market value, and if not, the value would be the amount it would cost to replace it. Martinez v. State, 16 Texas Crim. App., 122; Cannon v. State, 18 Texas Crim. App., 172; Cooksie v. State, 26 Texas Crim. App., 72; Keipp v. State, 51 Texas Crim. Rep., 417, 103 S. W. Rep., 392; Ramon v. State, 98 S. W. Rep.. 872. But when an improper measure of value is resorted to in the proof, this court is without power to correct it in the absence of objections at the time with proper exceptions reserved.

If the record in the instant case had been before Judge Davidson when he wrote the opinion in the Ramon case, supra, it could not have been more pertinent. We quote:

"It is contended in the motion for new trial, and urged here, that where value is required to be proved, it means 'market value' of the property alleged to have been stolen at the time and place of its theft. That question does not arise in this case. If the objection had been urged to the introduction of this testimony, or it had been insisted in the trial below, that this was not sufficient evidence, and was not the character of evidence introduceable, that the criterion should have been the market value, there might be some force in the position here. The fact that it may have been brought up for discussion in the motion for new trial is not sufficient. If the accused objects to the manner of proving the value during the trial, he must reserve his bill. He cannot sit by and permit proof of the value in an irregular or even an illegal way, without objection, and suggest it as a ground for new trial. The time for his objection or for raising the question is at the time of the introduction of the testimony. It is unquestionably true that value may become a very important question upon the trial of the theft of property where value is the criterion of punishment. In order to obtain a felony conviction, the proof must show at least $50 in value. Where it is insisted upon, in regard to the value of second-hand articles, as these were, if appellant had demanded that the market value be proved as the criterion, or had objected to the manner of proving it, insisting that the market value was the criterion, he would have placed himself in the attitude to have taken advantage of his contention here. Where it is insisted upon, the State must make proof of the market value, if it can; but where it is not done, then the real value can be shown. The manner of proving value will not be reversible, if erroneous, unless exception is reserved to such manner of proving it. This must be by bill of exceptions."

As will be seen from the quotation, the question there was raised by motion for new trial. Here even that was not done. The proof as made supports the verdict, that is, the turkeys were shown to have been worth more than fifty dollars.

The judgment of the trial court is affirmed.

Affirmed.

ON REHEARING.

January 11, 1922.

HAWKINS, JUDGE.-Appellant insists that the evidence shows Betts (the owner of the turkeys) lost only three hens worth $10 each, $30 for the three, and one gobbler worth $17.50, making a total of $47.50; and also shows that Blalock only bought four turkeys (three hens and a gobbler) which were identified as belonging to Betts. Therefore, it is urged that the felony conviction should not stand, the value of the property being under $50. If the value of the property actually appropriated was the criterion then appellant's contention would be correct. But it is the value of the property stolen. The offense of theft becomes complete when the "fraudulent taking" is accomplished. The ultimate appropriation need not be shown if it is taken with the intent to appropriate. It is not necessary to show asportation of the property. To constitute "taking" it is not necessary that the propetry be removed any distance from the place of taking; it is sufficient that it has been in the possession of the thief, though it may not be removed out of the presence of the person deprived of it; nor is it necessary that any definite length of time shall elapse between the taking and the discovery thereof; if but a moment elapse, the offense is complete." (Article 1331, Vernon's P. C., and cases cited in notes thereunder.) Tested by the proper ruie we think the evidence supports the verdict. Referring to Rabey's testimony, we find him saying: "When we went over there to the roost I got three (turkeys) and Roy got two; that made five. When we got a little piece one got away from me and that left two, and Roy let one get away from him, and that left only three; and we carried the three to the car, and then we went back and caught one more, and that made four. We did not have six turkeys in our possession at any one time." When the turkeys were taken into the possession of the parties the theft was complete. It will be seen from the foregoing that unless one of the escaped turkeys was caught the second time, six were actually taken. It would be a new doctrine that the escape of the stolen property from the thief would annul the crime. What occurred at the turkey roost determines the crime, and not the sale next day of the turkeys which failed to get away. Rabey's evidence is corroborated by circumstances related by Betts. The turkeys roosted on the lot fence. They were usually in the lot early of mornings while the stock were being fed. On the morning after the theft only one turkey was in the lot; one was seen coming up towards the barn; it had feathers pulled off its back, breast and legs; three days later the owner found another of his turkeys at a neighbor's some distance from his own house. The feathers found between the roosting place and where the car had stood indicated some trouble had been experienced before the turkeys reached the car.