
    OSBORNE v. STATE.
    (No. 6649.)
    (Court of Criminal Appeals of Texas.
    Dec. 6, 1922.)
    1. Criminal law <&wkey;l044 — Defect in indictment available on appeal, where matter of substance, though not complained of in motion in arrest.
    Defect in complaint, if a matter of substance, is available on appeal, though not complained of by motion in arrest of judgment.
    2. Criminal law ¡&wkey;968(I)— Motion in arrest of judgment deals with matters of substance only.
    
    A motion in arrest of judgment deals with matters of substance only, in view of Code Cr. Proc. 1911, art. 875.
    3. Criminal law &wkey;>l032(!) — Indictment and .information <&wkey;202(l) — Defects in indictment, if matter of substance, available after judgment, either in trial court or on appeal.
    Defects in indictment, where a matter of substance, may be taken advantage of after judgment, either in the trial court or on appeal.
    4. Larceny <&wkey;40 (I) — Where ownership is alleged in one person and possession in another, want of consent of both ordinarily should be averred and proved.
    In a prosecution for theft, where ownership is alleged in one person and possession in another, the want of consent of both ordinarily should be averred and proved in view of Pen. Code 1911, art. 1329, defining theft.
    5. Larceny <&wkey;32(6), 33 — In charging theft of corporation’s, property, the better rule of pleading is to charge ownership and possession in natural person having actual possession.
    A corporation may, in its corporate name, hold title to personal property which is the ’ subject of theft; but since the possession, that is, the actual care, control, and management, must of necessity be in some natural person, the better rule of pleading in charging the theft of such property is to charge both ownership and possession in such natural person.
    6. Indictment and information &wkey;>lll(4) — Indictment charging that property of corporation was stolen from named persons in possession without their consent not defective in not negativing corporation’s consent.
    Indictment for theft, defined by Pen. Code 1911, art. 1329, alleging that the stolen property was owned by named corporation and was stolen from the possession of named persons “who were holding” the property for the corporation without the consent of such named persons, held sufficient as against the contention that it failed to negative the consent of the corporation to the taking of the property.
    7. Criminal law <&wkey;864 — It was improper for court to enter jury room, while jury was deliberating, to explain charge.
    Under Code Cr. Proc. 1911, art. 748, providing that no person shall be permitted to be with a jury while deliberating on a case, and article 754, describing manner of further instructing jury after it has retired, and article 740, prohibiting the court from ^giving verbal charges except in misdemeanor eases, it was improper for the court to enter the room in which the jury was deliberating, at jury’s request, to explain charge previously given.
    8. Criminal law <&wkey;595(2) — Denial of application for continuance for absence of witnesses held reversible error.
    In prosecution for theft, defended on the ground that defendant was the owner of the property taken, the denial of an application for continuance for absence of witnesses who would have given testimony to prove that defendant’s claim of ownership was in good faith held reversible error.
    <gn»For other cases see same topic and KEY-NUMBER in ail Key-Numbered Digests and Indexes
    Appeal from District Court, Rusk County; Chas. L. Brachfield, Judge. ‘
    Herbert Osborne was convicted of theft, and he appeals.
    Reversed and remanded.
    Futch & Tipps, J. W. McDavid, and R. T. Jones, all of Henderson, and Norman, Shook & Gibson, of Rusk, for appellant.
    W. A. Keeling, Atty. Gen., and C. L. Stone, Asst. Atty. Gen., for the State.
   MORROW, P. J.

Conviction is for theft; punishment fixed at confinement in the penitentiary for a period of two years.

The indictment contains this averment:

“ * * * The same then and there being the corp'oreal personal property of and belonging to the Farmers’ Warehouse Company, the said the Farmers’ Warehouse Company, then and there being a corporation duly chartered and incorporated under the laws of the state of Texas, from the possession of Ed Man-singer and Homer Duran, who were holding the said four bales of lint cotton for the said the Farmers’ Warehouse Company, without the consent of the said Ed Mansinger and the said Homer Duran or either of them, with the intent then and there to deprive the said the Farmers’ Warehouse Company of the value , thereof, etc.”

The sufficiency of the indictment is assailed by the appellant upon the ground that it fails to negative the consent of the Farmers’ Warehouse Company to the taking of the property.

In the instant case there was no motion in arrest of judgment made; but, if the fault be one of substance, it was available on appeal without the motion in arrest of judgment. Such a motion deals with matters of substance only. See Melley v. State (No. 7185) 247 S. W. -, not yet reported; Code of Crim. Proe. art. 875. Such defects may be taken advantage of after judgment, either in the trial court or on appeal. White v. Staté, 1 Tex. App. 211; Holden v. State, 1 Tex. App. 234; Maddox v. State, 14 Tex. App. 447; Ryan v. State, 76 Tex. Cr. R. 510, 176 S. W. 49.

Where ownership is alleged in one person and possession in another, the want of consent of both ordinarily should be averred and proved. Bailey v. State, 18 Tex. App. 427; Frazier v. State, 18 Tex. App. 434; Atterberry v. State, 19 Tex. App. 401; Williams v. State, 19 Tex. App. 277; Johnson v. State, 34 Tex. Cr. R. 257, 30 S. W. 228. It is insisted, however, that under the averment in the indictment, the true owner being a corporation, the law touching the averment of want of consent was satisfied by the averment reading thus:

“ * * * From the possession of Ed Man-singer and Homer Duran, who were holding the said four bales of lint cotton for the said the Farmers’ Warehouse Company, without the consent of the said Ed Mansinger and the said Homer Duran or-either of them, etc.”

Supporting this proposition, reference is made by the state’s counsel to White v. State, 24 Tex. App. 231, 5 S. W. 857, 5 Am. St. Rep. 879; Thurmond v. State, 30 Tex. App. 539, 17 S. W. 1098; Hays v. State, 90 Tex. Cr. R. 498, 236 S. W. 482; Guyon v. State, 89 Tex. Cr. R. 287, 230 S. W. 408.

By reason of our statutory definition of “theft” (article 1329, P. C.) embracing “ownership” and “possession,” the construction thereof has often received the attention of our court.' The most comprehensive general discussion, we think, is found in Fraziet’s Case, 18 Tex. App. 434. We quote therefrom, italicizing that portion which as special application to the question before us:

“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 which 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 hut synonymous or convertible terms under our statutes on the subject of theft.
“As defined in the Code, this ‘possession’ is of a twofold 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.’ * * * Whose consent — the ownersl Not necessarily, unless the actual oivner was in ‘possession,’ at the time of ‘the talcing.’ 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 Ms consent’ re-férs specially to possession rather than ownership, Now, 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.’ * * * 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 and1 should be used in its stead, in giving it proper construction.”

Later, in the opinion, the following illustration is used:

“Suppose A., who is a nonresident, 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 ia 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 malees out the state’s case. If, under such circumstances, the accused has the consent of the real, actual or general owner, then it is Ms 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.’ * * * The state was not bound to allege, neither was it bound to prove, the want'of consent of the real owner.”

A corporation may, in its corporate name, hold title (ownership) to personal property which is the subject of theft. It is equally true that the “actual care, control and management” (the possession) thereof must of necessity be in some natural person, some one acting for the corporation. Therefore the better rule of pleading in charging theft of such property is always to charge both ownership and possession in such natural person. In the instant case, the pleader alleges ownership in the corporation, but further avers that the property was held for it by certain parties, thereby alleging what is a necessary corollary to corporate' ownership, that some natural person must be in actual possession; the averment of the indictment informs us as to the identity of these parties, and avers that the property was taken from their possession without their consent. Having averred that they were holding it for the corporation, and that it was taken from them without their consent, is tantamount to an averment that it was taken without the corporation’s consent (in so far as the law of theft is concerned) without a direct allegation to that effect. As was said in Frazier’s Case, supra:

“If, under such circumstances, the accused has the consent of the real, actual, or general owner, then it is his business to show it.”

So, in this case, whether the allegation be as we find it, or whether ownership, as well as possession, should have been alleged in the particular parties named, if appellant had the consent of some other officer or agent of the corporation, he might have shown it in justification of the taking. Thurmond v. State, 30 Tex. App. 539, 17 S. W. 1098, is direct authority sustaining the indictment. We believe it lays down a rule in consonance with common sense and is not antagonistic to any rule of law when considered in connection with corporate ownership and possession of personal property. This case is distinguished from Swink v. State, 32 Tex. Cr. R. 530, 24 S. W. 893, and other cases cited, in that the indictments therein do not disclose the real owner to have been a corporation.

The alleged stolen property was four bales of cotton. If we properly comprehend the 'evidence, the appellant sold five bales of'cotton to the witness Rettig. The cotton was in the yard of the Farmers’ Warehouse Company. One bale was claimed by a man named Russeau. Appellant arranged with Ret-tig to redeliver the bale which Russeau claimed and it was put in the possession of Russeau.

In his testimony and in his motion for a continuance appellant claims that the absent witness, Lesa Hampton, had agreed to place a bale of cotton for the appellant in the yard mentioned; that the bale in question was unmarked, and appellant believed it to be the bale which Hampton had agreed to deliver. The other four bales sold by the appellant to Rettig were claimed by the witnesses Mansinger and Duran' for the Farmers’ Warehouse Company. Appellant insists that, in fact, the bales belonged to him, and that they were put in possession of the Farmers’ Warehouse Company after the controversy arose, upon the assurance that they would be subsequently returned to him.

If we comprehend the application for a eontinuance, appellant, expected to prove by' Babe Hampton that one of these four bales was hauled by him and belonged to the appellant, and that by the absent witness Ta-’ ■ turn, appellant expected to prove his ownership of another one of the four bales. As to' the witness Tatum, the diligence is not sufficient. The contrary appears to be true so far as the witness Lesa and Babe Hampton are concerned. In the light of the record, as developed upon the trial, the testimony of both of these absent witnesses was material. The fact that the appellant claimed that he had made a mistake and sold Russeau’s bale of cotton with the same lot of cotton upon which the prosecution is founded’ was a circumstance used against him on the trial challenging the good faith of his claim of ownership. • Under these circumstances, the testimony of Lesa Hampton detailed above would have tended to support the appellant’s theory, and the testimony of the witness Babe Hampton would have tended to show that the appellant was, in fact, the owner of one of the bales of cotton in controversy.

There was an issue of fact concerning the (circumstances under which the appellant delivered to the Farmers’ Warehouse Company the four bales of cotton mentioned and the motive with which he did so; also as to the identity, that is, whether the four bales of cotton which he had put in possession of the Farmers’ Warehouse Company were the same as those which were charged to have been stolen. The court, in charging on the penalty, used these words:

“ * * s And you further believe from the testimony that the defendant, before he knew that he was charged with the theft of the property and within a reasonable time after the taking, if there was a taking, voluntarily returned the property, then you will assess the punishment at a fine of not exceeding $1,000.”

It is to be noted that five bales of cotton were taken from the Farmers’ Warehouse Company by the appellant. They were all sold by him to Rettig, and according to his testimony, as soon as he learned from Lesa Hampton of his failure to comply with his promise, and became aware of the fact that he had made a mistake in assuming that the unmarked bale of cotton which he delivered to Rettig was not placed in the yard by Hampton for the appellant, he at once went to Rettig and repossessed himself of the cot- ' ton and returned it to Russeau. Touching the time that he delivered to the Farmers’ Warehouse Company the four bales of cotton, the evidence is indefinite so far as we are, able to discern, and such must have been the view of the trial judge when he instructed the jury in the language which has been quoted above.

In the motion for new trial, it was charged that the members of the jury were unanimous in their opinion that the appellant was guilty and were divided in proportion of five to seven upon the penalty; that the point of division was the meaning of the word “charge” as contained in the instruction given the jury which has been quoted above. Seven of the members of the jury insisted that by the word “charge” the court meant when the prosecution began. Five contended that it meant when he was accused of the theft in an informal way. To settle this controversy the jury requested the trial judge to come into the jury room; that he responded to this request, and verbally explained to the jury that his meaning in the use of the word “charge” was correctly interpreted by the five jurymen mentioned. In support of the motion, the juror Lee, by affidavit, testified that the trial judge on his visit to the jury at their request said that by the word “charge” he meant that the defendant was duly charged with the offense when he was accused of taking the cotton by the “yardman,” and that the word “charge” meant when accused, and not when the legal prosecution had been instituted. Two other jurors said that the judge told the jury that they had the charge before them, and that it was for them to determine its meaning, as the charge embraced the law governing the case, and could be interpreted by them as they wished. Each of these jurors testified to the controversy in substance as set out in the motion, and after their conversation with the judge, the seven receded from their contention that the punishment should have been by a fine and consented to the penitentiary punishment.

The following statement of the trial judge is embraced in the record:

“ * * * when the jury informed the court that they desired to propound a question, and the judge asked the defendant’s counsel, who was present, if he desired that the jury be brought ‘out or would he agree that the judge should find out from them the question they desired to propound, which was agreed to by the attorney for defendant, a question was asked and the court informed them that the charge was as plain and intelligible as it could be written and he did not think it was necessary to further instruct them. The question asked was as to that part of the court’s charge relating to the voluntary return of stolen ' property.”

Touching the matter of additional charges, the statute, article 754, Code of Orim. Proc., reads thus:

“The jury, after having retired, may ask further instruction of the judge touching any matter of law. For this purpose, the jury shall appear before the judge, in open court, in a body, and through their foreman shall state to the court, either verbally or in writing, the particular point of law upon which they desire further instruction; and the court shall give such instruction in writing, but no instruction shall be given, except upon‘the particular point on which it is asked.”

Article 740, Code of Crim. Proc., reads thus: ' i

“No verbal charge shall be given in any case whatever, except in cases of misdemeanor, and then only by consent of the parties.”

The precedents are uniform to the effect that when further instructions are desired by the jury, they shall be brought into coui-t in a body and notice given to the appellant or his attorney, and in a felony case, in the presence of the accused, should be instructed alone upon the points requested, and the instructions must be in writing. When the subject-matter of the request is proper, the court has no option but to give the instruction; if the subject-matter is improper, the court shall so inform the jury in writing. Conn v. State, 11 Tex. App. 391. See, also, Vernon’s Texas Crim. Stat. vol. 2, p. 567.

In article 748, Code of Crim. Proc., it is said:

“No person shall he permitted to he with a jury while they are deliberating upon a case, nor shall any person be permitted to converse with a juror after he has been impaneled, except in the presence and by the permission of the coui-t, or except in a case of misdemeanor where the jury may have been permitted by the coui-t to separate; and in no case shall any person he permitted to converse with the juror about the case on trigl.”

It was said in a recent case:

“It is a most delicate undertaking to have verbal communications with the jurors touching the case on trial after the retirement of the jury, and should be attempted only upon rare occasions and impelled by the soundest reasons, and too much caution cannot be exei-cised in the effort to avoid impi-essing the jury with the idea that the court entertains any impressions of the case which he wishes them to know.” Lagrone v. State, 84 Tex. Cr. R. 615, 209 S. W. 415.

This observation we regard as being in consonance with the letter and spirit of the statutes to which we have adverted, and it may be added that in no event should the trial judge enter the room in which the jury is engaged in their deliberations for the purpose of discussing the charge or any phase of the ease or permitting any of the members-of the jury to do so. To the jury, not only the language of the judge trying the case, hut his manner, is of peculiar weight, and they may place upon it interpretations not intended. The instant case is one of felony, and it is manifest that such conversation as took place between the judge and the members of the jury while he was in the jui'y room was not in the presence of the accused. Such statements as were made to the jury were verbal, a method of instruction which the statute forbids. The refusal to grant the application for a continuance requires a reversal of the judgment. The occurrence which has just been discussed, however well' meant, we regard as offending against the statutory provisions to which attention has been directed.

The judgment is reversed, and the cause remanded.  