Conner v. State

<p>Appeal from the District Court of Coleman. Tried below before the Hon. J. C. Randolph.</p> <p>The conviction in this case was for the theft of a horse, the possession and ownership of which was alleged to be in one J. C. Benton. A term of five years in the penitentiary was the penalty assessed by the verdict.</p> <p>J. L. Nickel was the first witness for the State. He testified, in substance, that in June, 1886, he lived in the Rough creek neighborhood, in Coleman county, Texas. On two or three different occasions, prior to the commission of the act for which the defendant was now upon trial, the defendant came to the witness and requested the witness to join him in the business of stealing horses and running them off to Lampasas county and selling them. Defendant said that sleek horses, worth seventy-five dollars each, could be stolen and sold to a good profit. Witness declined to join the defendant in the proposed enterprise. Some time in May, 1886, witness went to defendant and told him that he had lost two horses, which had either strayed or been stolen, and asked the defendant to go with him in search of the said horses. Defendant replied: “I know of a way we can do to beat that, and in which you can get even for the loss of your horses. We can steal a couple of horses, which will make up your loss, and be easier than hunting the horses you have lost.” Defendant then proposed to steal the horses of the witness’s brother-in-law. The witness then went to Mr. E. A. Birdwell and told him of the proposition made to him by the defendant to go into the horse stealing business. Birdwell advised the witness to agree to the next proposition of the kind made by the defendant, and to apprise him, so that he and others might take the defendant in the very act. On the morning of June 15, 1886, the witness went to the' defendant’s house, and the defendant renewed his-proposition, and the witness, acting upon the suggestion of Birdwell, agreed. Defendant borrowed a saddle and rode a mule to the Rough creek bottom, to look for some horses, to steal, witness accompanying him, not for the purpose of participating in the theft, but in pursuance of the agreement he had made with Birdwell. They found two horses hoppled out, one a sorrel, branded JAO, and one a gray, branded BA. Witness and defendant examined those horses, and defendant said that they would do. Witness and defendant laid around the horses all day, at a point about two hundred yards distant. Defendant went to and closely examined the said horses two or three times during the said day. He asked witness during the day if the witness knew who owned the said horses, and witness replied truthfully that he did not. During the day the witness saw Mr. Bull, and went to him and asked him: “Ain’t you on to the racket?” About dusk the bell on one of the horses got to ringing, and defendant remarked: “There they are.” The witness and defendant rode to a point near the horses, when the defendant dismounted, with a rope in his hand, and went to the first horse, which he caught, but released. He then dropped his rope, caught the other horse around the neck, patted him and rubbed him down gradually towards the hopples on his feet. He was in the act of removing the hopples, when the men in ambush ordered him to hold up his hands. Defendant responded to the order with the exclamation “Oh!” The men then came in view, and were Bull, Birdwell, Townsend and Dave Benton. Defendant told them that the horses belonged to his uncle, and that if he could go to Buffalo Gap he would prove it. The men then asked him who owned the rope lying near. He first said that he did not know, but afterwards said that it was his.</p> <p>R. C. Bull testified, for the State, that on or about June 15, 1886, two horses, belonging to J. 0. Benton, were placed in his hands to be used as decoys in the detection of the defendant for horse theft. According to arrangements previously made, the witness took the said horses to a certain point in the Rough creek bottom and hoppled them out. He then secreted himself in the vicinity and watched them. He saw the defendant and Mckel when they arrived on the ground. About dusk A. P. Townsend joined witness, and they secreted themselves behind some rocks not far from the horses. Defendant and Mckel soon came to the horses. Defendant went to the nearest horse, dropped his rope, and took the horse around the neck, but soon released him. He then went to the .second horse, and was in the act of unhoppling him, when the witness stepped from his covert and ordered him to hold up his hands. Defendant exclaimed “Oh!” throwing up his hands, and then said that the horses belonged to his uncle, Jack Coggins. Witness asked' defendant who owned the rope. He replied first that he did not know, but afterwards said that he did. The horses were on their accustomed range, but were hoppled there to enable defendant to steal them, under an arrangement with Nickel to apprehend him in the act. On his cross examination, the witness said that the horses belonged to J. C. Benton, but were delivered to him by D. H. Benton, J. C’s. brother, for the uses to which they were put. Witness had the care and control of the horses during the day. Witness passed the defendant and Nickel at one time during the day.</p> <p>D. H. Benton testified, for the State, that he was a party to the plan devised for the detection of the defendant in the act of stealing horses. On the night of June 14 he went to his brother, J. C. Benton, and asked the loan of the two horses. His brother told him to take them. He did not tell his brother his object in borrowing the horses. He turned the horses over to Bull on the morning of the fifteenth for the purpose of hoppling them in the flat where the defendant could find and steal them. They were placed there by Bull with the intent and expectation that defendant would steal them. Witness joined Bull, Townsend and others in the flat after the arrest of defendant. Witness did not give defendant his consent to take the horses. "</p> <p>A. P. Townsend testified, for the State, that on June 15, 1886, Mr. Bull told him that defendant and Nickel were preparing to steal some horses, and divulged to him the scheme adopted to detect defendant in the very act. Witness joined Bull and staid with him until the arrest was made. He detailed the circumstances of the theft exactly as Bull did.</p> <p>J. C. Benton testified, for the State, that his brother Dave came to him on the night of June 14, 1886, and asked the loan of his two horses. He did not say what he wanted with them nor how long he wanted them. Witness told him to take them, and considered he had lent them for an indefinite period. Witness did not then know what his brother wanted with the horses. He did not consent that defendant should take them.</p> <p>E. .A. Birdwell testified, for the State, that he was a party to the scheme devised to detect the defendant. That scheme was formulated upon information given to witness by Nickel that defendant had proposed to him to embark in the horse stealing business.</p> <p>The State closed.</p> <p>Mrs. M. M. Conner testified, for the defense, that on the morning of June 15, 188G, Nickel' came to her house and asked her son Lee, the defendant, if he could go with him to help hunt his horses, and offered to pay him a dollar a day. Defendant replied that he had no horse to ride, but that, if he knew where he could find any of his uncle’s horses, he would go. Nickel asked him what brand his -uncle gave. He replied that he gave the half circle IV. Nickel then said that he knew where such horses could be found. Defendant then borrowed a saddle from Will Billings, and left with Nickel to hunt Nickel’s horses. Witness gave defendant some money, telling him to bring her some coffee and sugar if he went by the store. After defendant’s arrest, witness sent for and got the saddle borrowed from Billings, and found the coffee in one of the pockets.</p> <p>Jack Coggins testified, for the defense, that he had several horses in Coleman county, branded half circle IV. He gave the defendant, his nephew, authority to handle, look after and use those horses.</p> <p>The motion for new trial raised the questions discussed in the opinion.</p>