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84 Tex. Crim. 586

208 S.W 920

Gardner v. State

Court of Criminal Appeals of Texas

Decided February 19, 1919

Court of Criminal Appeals of Texas · decided 1919-02-19

<p>1. —Theft of Goats—Recent Possession—Charge of Court.</p> <p>Where, upon trial of theft of goats, defendant’s possession thereof having been fully and definitely explained by the State, in a manner which showed that he was not present at their taking and took no part in the actual theft, his theft of them could not be inferred from such possession, and the court’s charge on this phase of the case was error. Following Lincoln v. Franks, 102 U. S., 1189.</p> <p>2. —Same—Accustomed Range—Charge of Court.</p> <p>Where, upon trial of theft of goats, aside from proof of evidence of the habit of goats to stray sometimes from their accustomed range, there was no evidence that the goats in question had strayed from their range, and the charge assuming this to be the fact is error.</p> <p>3. —Same—Second Taking—Practice on Appeal—Rehearing.</p> <p>Where, upon trial of theft of goats, it was insisted by the State on rehearing that under the evidence two separate and distinct takings of the alleged stolen property were shown, and if the defendant be not guilty under the original taking the facts, nevertheless, showed him to be guilty under a second taking, which would somewhat modify the original opinion but it appeared from the record on appeal that the case was not tried upon this theory, there was no reversible error.</p> <p>4. —Same—Rule Stated—Second Taking.</p> <p>The rule is that there may be two separate and distinct unlawful takings of property so as to make two separate offenses. Following Taylor v. State, 62 Texas Crim. Rep., 611. But if the State relies upon either of said takings such theory should pertinently be submitted.</p>

Decided 1919-02-19

¶1 ON REHEARING.

¶2 February 19, 1919.

LATTIMORE, Judge.

¶3 This case comes before this court upon the State’s motion for a rehearing.

¶4 For the first time, as far as we can tell from the record, it is insisted in the motion for a rehearing, that under the evidence two separate and distinct takings of the alleged stolen property were shown, and that if the appellant be not guilty under the original taking, that the facts nevertheless show him to be guilty under a taking of the property in question after same had been taken originally by the confederate or confederates of the appellant, and by them either abandoned or left in some place, not shown by the evidence, from which the appellant procured them. The case was not tried in the court below apparently upon any such theory as this and it is possible that upon another trial the State may be able to develop this feature of its case more fully, or the proposition of connecting the appellant with the original taking.

¶5 The former opinion of this court will be modified, in view of the State’s contention that the evidence is sufficient to show appellant’s connection with what it denominates the second taking of the property, and that portion of said opinion which states substantially that unless the evidence on another trial shall be more cogent tending to show appellant’s connection with the taking of the goats, that the issue should not be submitted at all, may be regarded as excluded from said opinion.

¶6 There is no question, under the decisions of this court, but that there may be two separate and distinct unlawful takings of property so as to make two separate offenses. Trimble v. State, 33 Texas Crim. Rep., 397; Taylor v. State, 62 Texas Crim. Rep., 611. If the State relies upon either the first or any subsequent taking of the property such theory should be pertinently submitted to the jury and decided under appropriate instructions.

¶7 The motion for rehearing is overruled.

¶8 Overruled.

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