White, Presiding Judge.
I0nasmuch
as so much trouble and vexation occurs in a majority of prosecutions for theft with regard to “ ownership,” “ possession,” and “ want of consent,” we propose now, in connection with the recent opinion of Judge Hurt, delivered at the present term in the case of Bailey v. The Slate (ante, p. 426), to further elaborate these questions with a view of relieving them of many of the difficulties by which, whether from confusion in the decisions of our courts, or misapprehension of the proper construction of our statutes, they have become seemingly environed.
With regard to property which may be the subject of theft, there is provided, under the statute, two kinds of ownership, viz.: 1, a general, and 2, a special ownership, both of ttfhich depend upon “ possession ” alone so far as this offense is concerned. We will also see as we proceed that really “ ownership” means nothing more than “ possession,” and that ownership and possession are but synonymous or convertible terms under our statutes on the subject of theft.
As defined in the Code, this “ possession” is of a two-fold character. 1. It may be in the actual owner, who is the general owner; or, 2, it may be in some person holding the property for the actual owner,— who is the special owner. It is not necessary that the possession and actual or general ownership should be in the same person at the time of “the taking” to constitute theft. (Penal Code, art. 728.) It is necessary, however, in the language of the statute, that the taking should be “without his consent.” (Penal Code, art. 724.) Whose consent — the owner’s? Hot necessarily, unless the actual owner was in “ possession ” at the time of the taking.” If he was not in possession at that time, then the terms “ without his consent” mean without the consent of the special owner — that is, the person in possession. “Without his consent” refers specially to possession rather than ownership. Flow, who is the person in “ possession ? ” This is answered by the statute, which declares that “Possession of the person so unlawfully deprived of property is constituted by the exercise of actual control, care or management of the property, whether the same be lawful or not.” (Penal Code, art. 729.) The use of the disjunctive “ or ” in this provision of the statute has created no little of the trouble which has been experienced on this subject. Evidently the conjunction “and” was intended and should be used in its stead, in giving it proper construction.
Mr. Bishop says: “ However desirable a correct use of the English language may be, the courts have no jurisdiction to enforce it on the Legislature. Therefore, when the legislative meaning is plain, the exact grammatical construction and propriety of language may be disregarded, even in a penal statute. For example: the conjunction “and” will be read as “or,” and “or” as “and,” when the sense obviously so requires; and this in plain cases, even in criminal statutes against the accused.” (Bish. Stat. Crimes (2d ed.), § 243.)
Manifestly it never was intended that a person who was “ caring” for a horse, for instance,— one who is simply feeding and currying him as an ostler in a livery stable—was to be held in such possession and ownership as that the horse, when stolen from the stable, could be said to have been taken from his possession.- And the same with regard to the driver of an omnibus or wagon, who was controlling and managing the horse for the purpose of working him. Such persons have only temporary custody and use of the animal as servants of and subordinate to the owner or person having the actual care, control and management of the same. Their possession is not necessary to and will not support an allegation of possession or ownership. We are aware that Erskine’s case, 1 Texas Ct. App., 405, holds otherwise, but it will be overruled upon this point.
With regard to the pleading in theft, it is expressly provided that “ where one person owns the property, and another person has the possession, charge or (and) control of the same, the ownership thereof may be alleged to be in either.” (Code Crim. Proc., art. 426.) It “ may be alleged to be in either,”— that is, it may and in most instances should only be alleged to be in one, and that one should be the one having the actual charge, control and management. It is not in such cases necessary to allege ownership in the actual or general owner; the special owner is the one from whose possession the property is actually taken, and it is only necessary to allege a taking from him, and that it was without his consent. In other words, 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.
Proof must be made that the property was taken from the possession of the party in whose possession it was alleged to be. If the owner was not in actual possession, but another was, then, if the allegation placed it in the owner and the proof showed it in another who had the “ actual control, care and management,” then the vari anee between the proof and the allegation would be fatal, and a conviction could not be had. Let us illustrate the whole matter by actual instances which may occur at any time.
1. Suppose A., who is a non-resident, or resides in say Galveston county, is the actual owner of a stock of cattle or horses in Tom Green county or the Panhandle, which stock is under the actual control, care and management of B. One of the animals is stolen. The indictment should allege the ownership in B. alone, and it is, so far as consent is concerned, only necessary to allege and prove B.’s want of consent. Such allegation and proof fully makes out the State’s case. If, under such circumstances, the accused has the consent of the real, actual or general owner, then it is his business to show it. For, “on the trial of any criminal action, when the facts have been proved which constitute the offense, it devolves upon the accused to establish the facts and circumstances on which he relies to excuse or justify the prohibited act or omission.” (Penal Code, art. 51.) The State was not bound to allege, neither was it bound to prove, the want of consent of the real owner.
In Erskine’s case, supra, and in Jackson’s case, 7 Texas Ct. App., 363; Williamson’s case, 13 Texas Ct. App., 514; Wilson’s case, 12 Texas Ct. App., 481, and Bowling’s case, 13 Texas Ct. App., 338, it is held, as is expressed in the opinion in several of these cases, that “ whenever one person owns the property, and another person has the management, control or care of it, the want of the consent of each of these persons must be proved; and this proof should be made by the persons themselves if they are attainable, and if they are not to be had, their absence should be accounted for before the State can be allowed to resort to circumstantial evidence.” Under the views and reasons above expressed, such is not the law, and the doctrine thus announced in those cases is overruled.
2. Again: Suppose A. owns a horse, and he loans or hires it for a week to B., and it is taken from the possession of the latter. The ownership, possession and want of consent may be averred in B. alone or ownership may be averred in A., possession in B., holding the same for A., and without B.’s consent. This would be sufficient, and want of consent of both A. and B. would have to be so proven.
3. Suppose A. loans his horse to his son or servant to ride, or he sends them on the horse on his business, temporarily to town or church, and the horse is taken. In such case the possession is in A., and it is unnecessary to allege that the horse was taken from the son or servant, because their control and possession was simply subordinate to the superior possession of A.
4. Suppose A. is a minor and his horse taken; the possession may be alleged in whomsoever has the actual care, control and management of the horse.
In the case we are considering — the one in hand — Frazier was charged with the theft of a horse alleged to be the property of A. G-. Wheeler, without the consent of the owner, and with intent, etc. Wheeler’s testimony was that the horse was the property of a minor child, the daughter of one Sylvia Pickett, both of whom lived with the prosecutor Wheeler; that he, the prosecutor, “ had general, exclusive control and management of this horse.” Neither the want of consent of Sylvia Pickett, the mother and natural guardian of her minor child, nor that of the child itself, who was the real, actual owner, was proven. In the charge submitted by the court to the jury, they were in effect instructed that, if the property was taken from the possession of Wheeler and without his consent, and he at the time had the care, control and management of the property, that would be sufficient as to the ownership and want of consent. It is claimed that the charge is erroneous, and that the proof was insufficient as to want of consent, and was variant from the allegation as to ownership. Neither of these positions is well taken under the principles of law as we have herein announced them. The charge of the court was correct, and there was no error in refusing defendant’s special requested instructions.
Defendant’s motion for.a new trial, based upon newly discovered evidence, is entirely wanting in diligence, and it was not error to overrule it. If the proposed evidence was true, proper diligence would have disclosed that Mrs. Burt, who testified in the case, could have proven the same facts.
We have found no error in the proceedings on the trial of the court below, and the judgment is therefore affirmed.
Affirmed.
[Opinion delivered June 10, 1885.]