
    EMBRY v. STATE.
    (No. 7835.)
    (Court of Criminal Appeals of Texas.
    Oct. 24, 1923.)
    1. Criminal law <&wkey;854(7) — Reversible error to permit juror to spend night with his family without being accompanied by officer.
    Where a juror was permitted to spend the pight with his family with consent of the state’s counsel and his own, but not accompanied by an officer, as required by Code Cr. Proc. art. 745, a conviction must be reversed.
    2. Criminal law <&wkey;>925|/2(3) — New trial must be granted where juror communicates relevant information to other jurors after retirement.
    Where there was an issue touching the ability of a witness to recognize defendant at a certain distance, and a juror, improperly permitted! to spend the night with his family, communicated to the other jurors, after retirement for deliberation, that he could recognize a friend under like circumstances, a new trial must be granted, under Code Cr. Proc. art. 837, subd. 7.
    3. Larceny <5&wkey;40(11) — Indictment charging that property was taken from possession of owner insufficient, where relative had management of it.
    An indictment for theft, charging that the property was taken from the possession of the owner, is insufficient, under Code Cr. Proc. art. 457, where it appears that a relative of the owner had the management and control of the property at the time it was taken.
    <g=>For other eases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes
    Appeal from District Court, Montague County; C. R. Pearman, Judge.
    W. C. Embry was convicted for the theft of cattle. He appeals.
    Reversed.
    T. H. Yarbrough, of St. Joe, and Chancellor & Bryan, of Bowie, for appellant.
    Tom Garrard, Jr., State’s Atty., of Midland, and Grover C. Morris, Asst. State’s Atty., of Devine, for the State.
   MORROW, P. J.

The offense is theft of cattle; punishment fixed at confinement in the penitentiary for a period of 2 years.

After the jury had been impaneled and sworn, and had heard part of the evidence, oné of the jurors was permitted to go to his home, 12 miles from the courthouse, and spend the night with his family. He went with the consent of the state’s counsel, as well as that of the appellant’s counsel, which consent was given in the presence of the appellant. The juror was not accompanied by other members of the jury, nor by an officer.

There was an issue in the case touching the ability of one of the witnesses to recognize the appellant at a certain distance. During the separation, the juror noticed that he could recognize one of his friends at a similar distance and under similar conditions. He communicated this fact to the other members of the jury upon his return. The state’s attorney concedes that the transaction requires a reversal of the judgment. This view is concurred in by the court. The statute is imperative in demanding that, if a j.urer is permitted, for any reason, to separate from his fellow jurors, it shall not only be with the consent of the attorney representing the state and of the defendant, and by the permission of the court, but that he shall be in charge of an officer. Code Crim. Proc. art. 745. The mandatory nature of this statute has often been declared. See Sterling v. State, 15 Tex. App. 249, and other cases listed in Dibbles’ Case, 89 Tex. Cr. R. 427, 231 S. W. 769; also Garner v. State, 89 Tex. Cr. R. 486, 231 S. W. 389.

It is specifically declared in article 837, subd. 7, C. C. P., that a new trial shall be granted where the jury, “after having retired to deliberate upon the case,” has received other testimony. The bill of exceptions reveals a transgression of this law. See Vernon’s Tex. Crim. Stat. p. 789, and cases there listed.

The indictment named W. C. Hawkins as the owner of the property, and charged that it was taken from his possession. The record indicates that the stolen cattle were taken from the possession of W. A. Hawkins, a relative of W. .C. Hawkins, and that W. A. Hawkins had the care, control, and management of them at the time they were taken. It is essential that the person having the actual care, control, and management of the property be named in the indictment, See article 457, C. C. P.; also Vernon’s Tex. Crim. Stat. vol. 2, p. 456; Rabe v. State, 85 Tex. Cr. R. 373, 212 S. W. 502; Bergfeld v. State, 85 Tex. Cr. R. 489, 213 S. W. 986; Frazier v. State, 18 Tex. App. 434. It is not a case of a a misstatement of the middle initial. See Spencer v. State, 34 Tex. Cr. R. 66, 29 S. W. 159. It is one in which it affirmatively appears that W. C. Hawkins, named in the indictment, was the owner, but that the property was -in the actual care, control, and management of W. A. Hawkins.

For the reasons stated, the judgment is reversed, and the cause remanded.  