
    RABE v. STATE.
    (No. 5770.)
    (Court of Criminal Appeals of Texas.
    June 16, 1920.)
    I.Larceny <&wkey;32(5) — Ownership of cattle should be alleged in person controlling pasture and not owner of pasture.
    In a prosecution for theft of cattle from a pasture, ownership should be alleged to be in the person who had the care, control, and management of the pasture, and not in the owner of the pasture.
    2. Animals <@=>26 (2) — Lien for pasturage given.
    One taking cattle into a pasture of which he has control has a lien on the cattle for pasturage, although nothing is said concerning the price or who shall care for and control the cattle.
    3. Animals <@=>22 — Duty in pasturing defined.
    The law places the obligation on one taking cattle into his pasture to take care of theni,
    4. Criminal law <&wkey;925¡/2(3) — Discussion of accused’s failure to testify by jurors required new trial.
    Where a number of jurors were in favor of giving a two-year sentence until the fact that accused had not testified was called to their attention by jurors, and after the matter was discussed for some time, and because of such discussion, agreed to a four-year sentence, court erred in not granting a motion for a new trial.
    Appeal from District Court, Angelina County; L. D. Guinn, Judge.
    J. C. Rabe was convicted of cattle theft, and appeals.
    Reversed and remanded.
    See, also, 212 S. W. 502.
    Mantooth & Collins, of Lufkin, and J. J. Collins, of Huntington, for appellant.
    Alvin M. Owsley, Asst. Atty. Gen., for the State.
   DAVIDSON, P. J.

This is the second appeal. The judgment was reversed on the former appeal because of a variance between the allegations of the indictment and the evidence. The indictment on the former appeal charged ownership in Dr. Stewart, the real owner of the alleged stolen cattle. The care, control, and management of the cattle was held, under the evidence, to be in Thomas. This constituted a variance, for which the judgment was reversed. A new indictment was presented, containing three counts, alleging, respectively, ownership in Dr. Stewart, Mr. Herrington, and Mr. Thomas. Each count charges separate ownership. The count charging ownership in Herrington finds no basis in the facts. He was not in possession of the cattle, or the pasture from which they were alleged to have been taken. Herrington owned the pasture, but, under a contract with Mr. Thomas, Thomas was in control, and exercised care, control, and management of the pasture. Thomas had been in control under his contract with Her-rington for about two years.- Herrington had a conversation with Dr. Stewart with reference to pasturing his cattle, in which he informed him of the fact that Thomas had control of the place, and any contract he made with Thomas would be satisfactory. Dr. Stewart called upon Thomas, who agreed to let him pasture his cattle. There seems to hare been no stipulated price. Thomas was in control of the property — the pasture and fences.

Thomas’ testimony upon this trial is in conflict with his testimony upon the former trial. Upon the former trial he stated:

“It is true that I testified before in this case ‘that I owned a one-half interest in the pasture on that place this year. Dr. Stewart made arrangements with me this year to pasture some of his cattle in my pasture. He made a rental contract with me to rent my place. As to whether or not he was to pay me for the use of the pasture, we never set no price. He was to pay me a price. I left it to Mr. Herrington to set the price; that is, Mr. Josh Herring-ton. He did not pay the pasture rent in advance. I look after the place myself when I am able, such as keeping up the fences around the pasture, and the closing of gates, and things like that; but I have been sick some this year. There were a few cattle belonging to other people, besides Dr. Stewart. I saw to the cattle that were in the pasture; that is, I was supposed to keep them in there • and to keep other people’s out. I saw that -the fences were kept up, and the gates closed, the best I could. I don’t know just how far it is, but I think it is something like a mile Mr. Tulley lives from that pasture.’ That is correct.”

The above was his testimony upon the former trial. He further adds here: “What I testified to before was the truth, and it is true now.” On this trial Thomas testified, referring to Dr. Stewart:

“I believe it was a couple of days that he came to see me before the cattle were put in the pasture; anyway he came to see me just before the cattle were put 'in there. When he put the stock, or when he made arrangements to put the stock, in the pasture, he did not put the stock in my control, for me to manage and look after. I did not have any authority, management, or control whatever over the cattle. I had no instructions at all with reference to the cattle. We had no agreement about the fences, as to who was to keep them up; me and Dr. Stewart did that. As to who kept the gate closed, and looked after things of that kind, the children did at that time; I wasn’t able; I was sick. Dr. Stewart did not mention to me anything about such things as looking after the gate, or taking care of the cattle, whatever. If he asked me to exercise any sort of management or control about those cattle, I don’t remember it. I am the one that reported that some of the cattle were gone.”

The evidence shows that Dr. Stewart was not about the pasture, and exercised no management over it, or the cattle, further than to place them in the pasture controlled by Thomas. This he did through his employed hands. The case was decided before upon the theory that Thomas had a lien on the property for their pasturage, and that therefore he was in possession of the cattle as against the true owner, Stewart. This conclusion was reached by virtue of a lien fixed under such circumstances by the terms of the civil statutes. It was a legal lien, and would be operative in the absence of a contract to the contrary. These parties could have made any. contract with reference to it they saw proper to do. The evidence does not so show. In fact, it excludes the idea of such contract. Had the owner, Dr. Stewart, taken the cattle from the pasture with the fraudulent purpose of defeating the lien legally resting upon the cattle, he would have been subject to -prosecution under the statute. See P. C. art. 1335; Branch’s Ann. Criin. Stats, p. 1353. There would be no question in law or in fact that Thomas would be entitled to the possession of the cattle, after being placed in his pasture, as against Dr. Stewart, until the pasturage had been satisfactorily arranged. This would place Thomas in possession of the property under the facts of this case. We are still of opinion that ownership should- have been alleged in Thomas, and not in Stewart. The statement by Thomas that there was nothing mentioned between him and Stewart that he (Thomas) was to have control and management of the cattle, and kindred testimony, would not legally change this proposition. The law places the obligation upon him to take care of the cattle when he assumed the burden of their pasturage, and gave him a lien for pasturage. This matter was presented in various ways by appellant in the trial court. We have stated the matters generally.

Appellant requested the court to require the state to elect upon which count the prosecution would be had at the time the trial began. When the testimony was in, he again urged the election under which count the conviction would be asked. These were overruled. The court instructed the jury that they could convict under either count, submitting all three of them to the jury. Exception was properly and timely reserved to this action of the court. General ownership could have been alleged in Dr. Stewart as the real Owner, and possession and management in Thomas. This was pointed out in the former appeal; not that it was necessary to so allege, but if it was thought proper to allege ownership in the real owner under .the facts of this case, it should have been alleged in that manner. We are still of opinion that ownership should have been alleged in Thomas. He became the temporary owner of the property, as against even the real owner under the circumstances and the evidence depicted in this record. The authorities were sufficiently collated in the opinion on the former appeal.

Misconduct of the jury in discussing the failure of appellant to testify was presented on motion for new trial. Several jurors testified to that effect. Two or three of the jurors testified that, if it occurred, they did not hear it. Several jurors testified they were for the minimum punishment of two years until this matter was discussed; that they then changed their view, and voted for the maximum of four years, which was the verdict returned by the jury. The details of the testimony we deem unnecessary to mention. There are a great number of authorities, cited by appellant in his brief, which we think are in point. Wilson v. State, 39 Tex. Cr. R. 365, 46 S. W. 251; Tate v. State, 38 Tex. Cr. R. 261, 42 S. W. 595; Mizell v. State, 81 Tex. Cr. R. 241, 197 S. W. 300; Boozer v. State, 198 S. W. 295; Walling v. State, 59 Tex. Cr. R. -279, 128 S. W. 624. And for a great number of other cases see Branch’s Ann. P. C. p. 292. Some of the jurors gave as a reason for desiring to fix the punishment at two years that appellant was getting to be an elderly man, and they thought two years would be a sufficient time for his reformation, and to ascertain the fact that he must not repeat this character of transaction ; but, after the matter was discussed of his failure to testify, they changed their verdict and went to four years. It is sufficient, with reference to the remarks used, to copy the following from the affidavit of Perry:

“After the jury had retired, I was in favor of giving him a conviction for only two years, as he is now an old man, and there being no proof of other crimes against him, I felt that if we gave him a two-year sentence that probably by the time he served that out he would be taught a sufficient lesson to not do a. thing like that again. Some of the others, also, were in favor of a two-year term; but some of the older men spoke up against this, and, as an argument against giving him a two-year term, said that he ought to have the limit of four years; that he did not even get on the stand and testify, or attempt to explain and tell how it happened, and that he did not even get on the stand and offer any excuse for his conduct, or give the jury any information as to why he stole the cattle, and that, if he had not been guilty, he would have certainly got on the stand and denied it.”

There are affidavits of other jurors substantially to the same effect. The evidence on this issue is in substantial compliance with the above.

The judgment will be reversed, and the cause remanded. 
      
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