
    TRINKLE v. STATE.
    (No. 5999.)
    (Court of Criminal Appeals of Texas.
    Dec. 1, 1920.)
    1. Larceny ¡&wkey;7 — Express company owner of goods received, for purposes of law of theft.
    When an express company received and receipted for goods, which were subsequently stolen, the company, under the law of theft, became the owner.
    2. Indictment and information <&wkey; 184 — Allegation that owner is unknown not supported, where evidence shows owner known, and grand jury used no diligence to ascertain-name.
    If the evidence on a trial for larceny shows the owner of the goods is known, and there is no evidence that the grand jury used diligence to ascertain his name, the evidence is insufficient to show the owner was unknown.
    
      3. Indictment and information <&wkey;l66 — If owner of stolen property is in fact known, state must show grand jury could not have learned name.
    If the owner of stolen goods is alleged to be unknown in the indictment for the larceny, and on trial the evidence shows the name of the owner, the state is required to go further, and show that the grand jury did not know the name of the owner, and could not by reasonable diligence have obtained such information.
    4. indictment and information &wkey;>184 — Allegation owner unknown to grand jury not sustained, where it is shown they could- have ascertained name.
    Where it appears from the evidence on trial for larceny that the grand jury could have ascertained the name of the owner of the goods by inquiry of witnesses who appeared before them, or by the use of proper or reasonable diligence, allegation of the indictment that the owner was unknown to the grand jury is not sustained.
    5. Indictment and information i&wkey;184 — Conviction as for theft from unknown owner cannot stand, where grand jury could have ascertained ownership.
    In a prosecution -jr larceny of automobile tires, the indictment, in the count under which the conviction, occurred, alleging theft from an unknown owner, such conviction cannot stand, where it appears that for purposes of the law of theft the goods, when stolen, were owned by an express company, which had received and receipted for them, and that the jury by the exercise of due diligence could have discovered the facts and laid the ownership properly in the indictment.
    Appeal from District Court, Smith County ; J. R. Warren, Judge.
    Roscoe Trinkle was convicted of theft, and he appeals.
    Reversed and remanded.
    F. J. McCord, of Longview, Stephens & Sanders, of Gilmer, and Simpson, Lasseter & Gentry, of Tyler, for appellant.
    Alvin M. Owsley, Asst. Atty. Gen., for the State.
   DAVIDSON, P. J.

Appellant was convicted of theft of 26 automobile tires, as set out in the second count of the indictment. The first count charges theft from the possession of D. Beck; he being the alleged owner. The second under which the conviction occurred, alleges theft from an unknown owner. The third alleges that he received from somebody unknown to the grand jury. There are other counts in' the indictment. The court submitted, however, only the second count and fourth count. The jury in their verdict disregarded the fourth and convicted under the second count, which charges theft from an unknown party.

The contention of appellant is that the allegation of unknown ownership was not justified by the facts, and that the grand jury could have known, had it tried to find out, from whom the property was taken. Birdwell, the foreman of the grand jury, testified they tried to ascertain from whom defendant received the tires, and that they made diligent inquiry to ascertain from whom appellant received the tires, but were unable to find out. That is the evidence the state put in to justify the allegation of unknown ownership. The facts introduced by the state are to the effect that there were several shipments of auto tires from Dallas to different parties. These tires were sent through the Wells Fargo Express Company, now the American Express Company, to parties at Lufkin, Tex. Some were sent to two or three parties at Tyler, Tex. These shipments occurred on different dates. The state placed the express company in possession of the goods in . Dallas, and were so placed by the parties who sold and shipped to those at the other end of the line. This was un-controverted, although there was objection to some of the testimony that was introduced to prove it.'

It is not the purpose here to discuss the alleged errors in the manner of proving the shipments. That they were shipped as indicated through the express company is not a disputed issue; at least it will be so regarded in this opinion. When the express company received and receipted for the goods, they became, under the law of theft, the owner. The tires were placed in possession of the express company, to deliver to the consignee. They were never delivered. They were to be transported from Dallas to the respective'points of destination set out in the bills of lading and receipts given by the express company for them, and they passed into the possession of the express company. It seems from the testimony that the goods were shipped, or were to be so shipped, in a car over the Texas Pacific lines from Dallas as far east as a station called Big Sandy. At that point they were to be transferred to the Cotton Belt Railway. The state further proved that in the town of Tyler appellant was seen in possession and assisted in disposing of tires the-state sought to identify as those that were placed in the hands of the express company in Dallas. ■How they got to Tyler, outside of being in the possession of appellant, the state did not prove. It is also in evidence that, when these tires reached Big Sandy, they were to be transferred through the express office at that point for carriage on the Cotton Belt. This is the state’s case.

It is only by inference that the tires ever left Dallas. None of the express messengers or agents on the railway train were introduced. None of the employés of the express company at Big Sandy were introduced. The agent at Big Sandy was Mr. Beck, the man from whose possession the property is alleged to have been taken in the first count of the indictment. He was not produced at the trial. There was an application for continuance by defendant to have him present, which was overruled by the court, and during the trial that count in the indictment was ignored, and not submitted by the court to the jury. If that count had been relied upon, it would have been necessary, of course, to produce Mr. Beck as a witness; but they did not do so, and the record is silent as to whether they undertook to have him present. What he would have sworn, of course, is a matter of conjecture, except as set out in appellant’s application for continuance. Now, it would seem to be evident that the grand jury could have had the witnesses before them to show the goods were transported on the lines of the Texas & Pacific Railway Company or on the Cotton Belt, or both. They could have shown by waybills, and by their record evidence, and by messengers or employés on the train who had charge of the goods from Dallas, if they went from Dallas, or what became of them. The goods were in their possession and under their control. This record is silent as to whether or not ‘they sought to have those express agents and employés of the company before the grand jury.

After the express company received the goods, they were in the company’s possession, under its control and management, making it thereby the owner so far as this prosecution is concerned. The grand jury legally knew that, and they were put on notice of it from the evidence in this record. The law, with such facts before them, placed these goods in the possession of the express company or its agents. The slightest diligence ought to have had those witnesses before' the grand jury to testify as to when and where the tires disappeared or were taken. It seems they have a method in the express company of detecting this, as testified by witnesses. If a certain amount of goods is shipped from one point to another, they are checked up at the starting point and checked up en route, and the place of shortage, if any, is thus discovered, and notation made of it. If these goods were shipped from Dallas to Big Sandy, and disappeared en route, the express agents knew or could have known it. It was their business to know it, and to make a proper record in regard to it. Thy were not called to testify before the grand jury or before the court, and no process issued, so far as record discloses. The state relied alone upon the fact that the express company had receipted fop the goods at Dallas, to be routed over the Texas & Pacific lines in a certain numbered car. Those goods were' taken by somebody from the express company, and the express company’s records, books, agents, and employés' knew or should have known when the theft occurred, or about where it occurred. If the agents or employés of the express company in charge of the goods en route were particeps crimi-nis in the taking, or disposed of them to somebody, it might be embezzlement on their part, but could not be theft on the part of appellant. Even if it be conceded that appellant received the goods en route it would not constitute him the taker, and therefore guilty of theft.

It is the settled law of Texas that if the evidence on the trial shows that the owner is known, and there is no evidence that the grand jury used diligence to ascertain the name of the owner of the property, the evidence is insufficient to show the owner was unknown. Jorasco. v. State, 6 Tex. App. 243; Langham v. State, ,26 Tex. App. 539, 10 S. W. 113; Sharp v. State, 29 Tex. App. 213, 15 S. W. 176; Yantis v. State, 65 Tex. Cr. R. 564, 144 S. W. 950. It is also well settled that if the owner is alleged to be unknown, and on the trial the evidence shows the name of the owner, the state is required to go further and show that the grand jury did not know the name of the owner, and could not by reasonable diligence have obtained that information. Jorasco v. State, 6 Tex. App. 243; Williamson v. State, 13 Tex. App. 518; Brewer v. State, 18 Tex. App. 456. Where it appears from the evidence on the trial that the grand jury could have ascertained the name of the owner by inquiry of witnesses who appeared before them, or by the use of prqper or reasonable diligence, an allegation that the owner was unknown to the grand jury is not sustained. Same cases already cited. See, also, Atkinson v. State, 19 Tex. App. 466; Kimbrough v. State, 28 Tex. App. 369, 13 S. W. 218; Swink v. State, 32 Tex. Cr. R. 530, 24 S. W. 893; Grant v. State, 36 S. W. 264; Shockley v. State, 38 Tex. Cr. R. 458, 42 S. W. 972; McKay v. State, 49 Tex. Cr. R. 120, 90 S. W. 653; Hellums v. State, 55 Tex. Cr. R. 356, 116 S. W. 590; Branch’s Ann. P. C. p. 1321.

The evidence in regard to diligence on the part of the grand jury is as above quoted from the testimony of the witness Bird-well, who was foreman of the grand jury. If Beck had been introduced, and the grand jury knew of Beck, because they alleged he was the owner in the first count of the indictment, he could have shown, by his testimony and the records of his office, or want of record facts, whether dhe tires reached Big Sandy or not. He was the express agent at that point. He was not introduced nor brought to trial as a witness. He must have been before the grand jury under the circumstances stated; at least there was evidence before the grand jury to show that they believed be was the owner and in possession, because they so allege in the first count. But be was not introduced on tbis trial to show that the goods did not reach Big Sandy and pass into his possession as express agent. If the goods were shipped, and in transit were lost between Dallas and Big Sandy, those in charge of the goods on the train, and whose business it was to look after them and^make records in regard to them, could have been introduced. Their names could easily have been ascertained from the express company. Their management, as shown by the evidence, was to keep in strict touch with the express company’s business, showing, indeed, a very marked familiarity with the express company’s business. . They testified to the matters in regard to the duty of the agents in charge and to the relation of their employés on the train in taking care of express company’s shipments en route to their destination. The testimony of .Birdwell does not meet the requirements of the law. All that he did testify was that they tried to ascertain from whom appellant received the goods. That would hardly bear upon the question of who the owner was. He might have received them from anybody who had stolen them or purchased them. The owner under the circumstances was the express company or its agents on the train in charge of the goods. The point of their disappearance could have been stated with almost accuracy, if it occurred en route from Dallas to Big Sandy. We suppose from this record that the goods did disappear at some point between Dallas and Big Sandy, inasmuch as the state abandoned the count charging the goods in possession of Beck at Big Sandy.

This question was raised by the defendant in several ways, both as to the sufficiency of the facts to meet the allegation in the indictment and special charges which were requested and refused. The appellant’s theory of the case is that he purchased the goods in Big Sandy from a man who gave his name as Hughes. This was proved by several witnesses, who witnessed the purchase and’ payment for the tires, and one witness, a business man or merchant in the town of Big Sandy, stated appellant did not' have sufficient money to pay for the tires at the time; it being after banking hours, and he could not get a check cashed, he let appellant have $55 to make a sufficient sum to pay Hughes for the goods. There are witnesses who purchased tires the same evening from Hughes, some in Big Sandy and others before Hughes reached Big Sandy. They traced Hughes through the country, trying to sell tires before he reached Big Sandy, coming from direction of Dallas. These witnesses were, farmers in the country and business men around the town of Big Sandy. If appellant’s theory about it is correct, he was not guilty of any violation of the law, either of theft or fraudulent receiving.

There are quite a number of questions in the case, of importance and of serious moment; but, inasmuch as the case must be reversed' under the authorities for the point discussed, a review of those matters is pre-termitted.

For the reasons indicated, the judgment will be reversed, and the cause remanded. 
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