
    JEMISON et al. v. STATE.
    (No. 3988.)
    (Court of Criminal Appeals of Texas.
    March 29, 1916.)
    1. Criminal Law &wkey;721 (6) — Trial—Argument oe District Attorney.
    In a prosecution for hog theft, argument of the district attorney that, “If it is not true that the defendants did not kill the hog, why was there no evidence to the fact that they did not kill the hog, as was positively testified -to,” was improper, as a direct allusion to defendants’ failure to testify in their own behalf.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. § 1672; Dec. Dig. &wkey;>721(6).]
    2. Larceny i&wkey;60 — Ownership and Possession oe Property — Sueeiciency oe Evidence.
    In a prosecution for hog theft, testimony of the owner held, sufficient to show ownership and the possession of the hog, with actual control, care, and management of it, when stolen.
    [Ed. Note. — For other cases, see Larceny, Cent. Dig. §§ 156-158; Dee. Dig. <&wkey;60.]
    3. Larceny <&wkey;40(ll) — Possession oe Property — Variance.
    Where the indictment laid the ownership of the hog in one Smith, proof that Smith’s ranch was in charge of his agent, who looked after his interests, did not constitute a variance in the proof as to possession of the hog.
    [Ed. Note. — For other cases, see Larceny, Cent. Dig. § 126; Dee. Dig. <&wkey;>40(ll).]
    4. Larceny <&wkey;73 — Instruction—Possession and Ownership.
    Where it appeared that an animal was stolen from the alleged owner’s ranch, which was in charge of his agent, the charge that possession of property of which a person is unlawfully deprived is constituted by the exercise of actual control, care, and management of the property, whether the same be lawful or not, and that, to warrant conviction, the jury must find beyond a reasonable doubt that the animal was taken from the possession of the alleged owner, and that, if it was in the possession of others when taken, or the jury had a reasonable doubt on the point, they should acquit, was sufficient.
    [Ed. Note. — For other cases, see Larceny, Cent. Dig. § 196; Dec. Dig. &wkey;>73.]
    5. Criminal Law &wkey;>507% — Evidence—Accomplice — Sueeiciency oe Evidence.
    In a prosecution for hog theft, evidence held insufficient to make a state’s witness a par-ticeps criminis as principal, accomplice, accessory, or otherwise a party to the offense.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 1097, 1264; Dec. Dig. <§=> 507%.]
    Appeal from District Court, Anderson County;' John S. Prince, Judge.
    Lee Jemison and David Jackson were convicted of hog theft, and they appeal.
    Judgment reversed, and cause remanded.
    J. E. Rose and O. J. Addington, both of Palestine, for appellants. C. C. McDonald, Asst. Atty. Gen., for the State.
   DAVIDSON, J.

Appellants were convicted of hog theft, and given two years’ confinement in the penitentiary each; the ownership being alleged in W. C. Smith.

A question is presented as to proper allegation of ownership under the facts. This comes from an attack on the sufficiency of the evidence to support that charge in the indictment as well as refusal of the special requested instructions directing the jury to enter a verdict of not guilty on the variance between the proof and allegation of ownership. Smith, alleged owner, lived in the town of Malakoff, in Henderson county. He owned quite a lot of property, land, and stock about 15 miles from Malakoff; some of it being in Anderson county. The particular point at which the animal was stolen was in Anderson county; therefore the prosecution was had in Anderson county. Sinith testified he had never lived on his ranch or farm; that he visited it occasionally; sometimes every week or two; sometimes it would be two months, and intervals between visits would be as much as three months. A man named Farmer was his employé and lived on the ranch. Smith testified that he knew nothing of the hogs; that Mr. Parmer was looking after his interests, and after the hog-disappeared Farmer so informed him. He said:

“I want to state that the man in charge of the place, Mr. Farmer, looked after the stock. I was there possibly once a month, and wouldn’t look at the hogs at all. This is why I didn’t miss the hog. I could not say that I know of my own knowledge that a certain hog is gone. X couldn’t say -who took it, because I wasn’t there; what I know is hearsay. I do not know of what disposition Mr. Farmer may have made of that hog, nothing only what he told me. I said that sometimes I would go down there once a month, and possibly not see the hogs while I was there, but Mr. Farmer was there looking after the hogs, cows, and horses that were on the place. He had been there since 1908, in that capacity, in my employ. I lived in Mala-koif, in the adjoining county. Malakoff is about 13 miles from the county line between Anderson and Henderson counties. This particular part of my ranch is in Anderson county, something like two miles below the line. Sometimes I would go down to the ranch once a week, and sometimes once in two months. I would be there every week for two or three weeks, and sometimes would not be there but every two months, have been away from there as high as three months.”

On cross-examination, after having been recalled by the state, and after a conference with Mr. Bishop, the district attorney, he stated:

“I don’t think that the particular hog in question was ever on my place at Malakoff; not since they were little pigs, if then.- I never lived on that ranch individually. Mr. Crist has been with me off and on for about 12 years. I never did have that particular hog at Malakoff.”

He further states:

“I don’t remember of having seen the particular hog that was claimed to have been missing from my ranch. To say I ever saw the particular hog, I couldn’t say; there was just a bunch of hogs in the hog pasture.”

In another portion of his testimony on recall, which is relied upon by the state to prove ownership in Smith as alleged, and not in Farmer, he states:

“Mr. Fannie Farmer was working for me on the ranch, looking after things. He did anything I wanted him to do. About the 14th day of May, 1914, Mr. Farmer only had such control and management and interest in the stock on this ranch as I would tell him. I reserved control of everything to myself. Mr. Farmer was not my overseer. He was just a day-laborer. Mr. Farmer was just a day-laborer, and worked for so much a month. Sometimes he would collect his wages by the month, and sometirnes it would be two or three months.”

We are of opinion that the position of appellants is correct. The ownership should have been alleged in Farmer. The fact that he worked under the supervision or general control of the absent owner would not change that position. All owners control their business, sometimes in person, and sometimes through employed agencies. Here it is made to appear that the real owner of the property did not control the ranch except in a general way, visiting it at intervals, and that E’armer was really\ in possession and control of things. Under the cases of Bailey v. State, 18 Tex. App. 432, Frazier v. State, 18 Tex. App. 440, Conner v. State, 24 Tex. App. 245, 6 S. W. 138, McDonald v. State, 70 Tex. Cr. R. 80, 156 S. W. 209, Williams v. State, 42 Tex. Cr. R. 18, 57 S. W. 93, Bryan v. State, 54 Tex. Cr. R. 59, 111 S. W. 1035, and Overturf v. State, 31 Tex. Cr. R. 10, 23 S. W. 147, it would seem that Mr. Farmer had the control and management of this property. The indictment should have alleged' ownership and possession in Farmer, and could have added, if it was thought proper to do so, that while he was custodian and special owner, Smith was the real owner. In that case want of consent of both would have to be alleged and proved. If general ownership of stolon property is in one man, and possession, care, and control in another, the indictment may allege the ownership in the general owner, but must allege the possession in the party in possession, so far as criminal pleadings are concerned, and it may be sufficient to allege ownership and possession both in the person having the actual care, control, and possession of the property. In addition to quoted testimony, Mattie Speer testified that she lived on the ranch; that Farmer was boss and general overseer; that Mr. Farmer seemed to be and acted as the general manager and boss of the whole situation at the ranch; when tenants wanted anything, they went to Mr. Farmer; when the horses or cattle and hogs or anything was to be seen about, they went to Mr. Farmer for directions; they never went to Mr. Crist; that while she was on the ranch she was boarding with Jemison, one of the appellants. She further says that Mr. Farmer was their boss and superintendent, to whom all parties on the ranch went for instructions. Mr. Farmer had the care, control, and possession of the horses, cattle, and hogs about the place. There are quite a number of other authorities that might be mentioned in this connection, but those mentioned are sufficient. We therefore conclude that the allegation of ownership and possession and want of consent, etc., should have been alleged in Farmer, as contended by appellants.

It is also contended that the case should be reversed on account of remarks of one of the prosecuting counsel in which he used this language:

“If it is not true that the defendants did not kill the hog, why was there no evidence to the fact that they did not kill the hog as was positively testified to by Henry Jackson?”

It is contended that this was an allusion directly to the failure of the defendants to testify in their own behalf. An exception was taken. There was another remark made by prosecuting counsel also to which exception was taken. That remark was as follows:

“These two men have practically confessed their guilt, because they brought no evidence here to deny it.”

In support of these propositions various authorities are cited which we think sustain appellants’ contention. Flores v. State, 60 Tex. Or. E. 25, 129 S. W. 1111; Wallace v. State, 46 Tex. Cr. E. 341, 81 S. W.-966; Barnard v. State, 48 Tex. Or. E. Ill, 86 S. W. 760, 122 Am. St. Eep. 736; Shaw v. State, 57 Tex. Or. E. 474, 123 S. W. 691; Williams v. State, 48 Tex. Cr. E. 75, 85 S. W. 1144; Huff v. State, 103 S. W. 394; Eeinhard v. State, 52 Tex. Or. E. 63, 106 S. W. 128. And for authorities generally see Branch’s Criminal Law, § 849, with the authorities already cited and there cited. Bearing upon this phase of the case, Henry Jackson testified for the state that he was present when the hog was killed, and connects the two appellants with the killing and cleaning of the hog and its appropriation. Quoting from his testimony, he says:

“Nobody else was there besides me and those two negroes. David Jackson was present when Lee hit the hog with a rock. They cleaned it with a knife—with David Jackson’s knife.”

He further states:

“Me and Lee and David were up there chopping corn. That was some time year before last in corn chopping time. We were all chopping corn in the same field. It was about 11 o’clock, just before dinner. They had fresh moat for dinner. I helped eat it. They put it on the table; I eat it. If they hadn’t put it on the table, I wouldn’t have eat it. I don’t know right exactly when was the first time that I told this; I ain’t talked nothing about this. I first told it to Mr. Smith and another fellow; I don’t know his name now. He lives in Anderson county, one arrested him. They come down there and arrested Lee, a tall man. I don’t know whether I would know him or not. It was the sheriff. He was a tall man. He and Mr. Smith were the only men that I ever spoke to about it, and that was about a year or over after the hog was killed. The reason that I never told it for a year or more afterwards and after these boys had left the farm, I ain’t never told nobody nothing. How comes me to tell Mr. Smith and Mr. Guinn? ' Mr. Fannie Farmer had already told Mr. Smith, I suppose.”

He further states:

“The men that had me up there promised me that I wouldn’t be prosecuted if I would tell this like I have told it on the stand.”

So it would seem that this witness, Henry Jackson, who testified for the state, was the only-one who witnessed the killing of the hog, and made himself a particeps eriminis in the transaction. The same day the hog was killed he testified he ate some of the alleged stolen hog, was present when it was done, and did not mention it for a long time. He excludes the presence of everybody except himself and the two defendants. This evidence raises the issue: First, that Jackson was a particeps eriminis, and needed corroboration in order to prove the state’s case; and, second, it excludes the presence of anybody and everybody to the taking of the hog at the time it was taken, except himself and the two defendants. So it will be seen that the court should have charged with reference to accomplice testimony; and it excludes the presence of everybody except himself and the two defendants. With this statement from the record it would seem to ibe practically evident that the two defendants were the only people who could contradict Henry Jackson", the state’s witness, on any fact connected with the taking. This being true, the remarks of the prosecuting officer should be regarded as a reference to the failure of these defendants to testify. There was nobody else by whom they could prove anything except by themselves and the state’s witness Henry Jackson. Under these authorities it is clear to our minds these remark's of the prosecuting officer was a reference to the failure of the defendants to testify. They could bring no witness to show they did not kill the hog except themselves. They did not testify in the case. Therefore these remarks were references to appellants’ failure to take the stand and testify. There was nobody else by whom appellants could have proven to the contrary of what Jackson said.

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

PEENDEEGAST and HAEPBE, JJ.

(concurring). We concur in the reversal of the case on the sole ground of the argument of the district attorney alluding to the appellants’ failure to testify.

We are clearly of the opinion that the testimony of the owner of the alleged stolen hog was ample to show, not only that he was the real owner, but also in the possession of the hog, in that he wasi in the “actual control, care, and management” of it when it was stolen, if it was stolen, and that there was no variance in the proof and allegations as to the possession. The court specifically submitted the question to the jury in his charge as follows:

“Possession of the person so unlawfully deprived of property is constituted by the exercise of actual control, care, and management of the property, whether the same be lawful or not. In order to warrant a conviction in this case, the jury must find from the evidence beyond a reasonable doubt that the hog, when taken (if you find it was taken), was from the possession of W. O. Smith. If the hog was in the possession of Fannie Farmer or George Crist when taken (if it was taken), or if you have a reasonable doubt thereof, you will acquit the defendants,”

—which was all that was necessary, and, having given that charge, should not have given those or either of them requested by appellant on the subject.

We also think the testimony does not make the state’s witness Henry Jackson a particeps eriminis as principal, accomplice, or accessory, or otherwise a party to the offense.

The judgment will 'be reversed on the sole ground of the objectionable argument of the district attorney excepted to. 
      <g=a>For other eases see same topic ana KEY-NUMBER in all Key-Numbered Digests and Indexes
     