
    SAMPSON et al. v. STATE.
    (No. 5080.)
    (Court of Criminal Appeals of Texas.
    June 19, 1918.)
    1. Crops <®=38 — Taking of G-rowing, Standing, or Ungathered Corn — Statute-.
    The statute prohibiting the unlawful and fraudulent taking from the possession of the owner of growing, standing, and ungathered corn does not apply only to immature and undeveloped corn in a growing condition, but punishes the taking of any growing standing corn, even if mature.
    2. Indictment and Information <⅜»125(20)— Conjunctive Charge.
    Information charging that defendants unlawfully and fraudulently took from the possession of the owner certain growing, standing, and un-gathered corn sufficiently charged the statutory offense, since, where a statute provides that the offense may be committed in divers ways, the pleader may charge them all conjunctively, and prove what ho can, or may select any particular phase of the statute, and charge it.
    3. Crops <s=j8 — Joint Prosecution — Action Pursuant to Common Purpose — Larceny of Standing Corn.
    In a prosecution of two defendants for unlawfully and fraudulently taking from the possession of the owner certain growing, standing, and ungathered corn, a statutory offense, to sustain conviction, the evidence must show that defendants were acting together as accomplices or principals, pursuant to a common purpose, in taking the corn.
    4. Indictment and Information <©=3166 — Joint Offense — Separate .Action by Defendant.
    Where the offense is joint or jointly charged, the state does not meet the allegations of the information by showing it was committed by the separate acts of the alleged joint actors, and under such circumstances the indictment or information cannot combine the two as jointly acting together.
    5. Crops <©=^8 — Larceny of Standing Corn-Fraudulent Intent.
    If defendants took the growing, standing corn of another, without intent to steal it or defraud the owner, but merely to use in catching horses outside in the lane, they wore not guilty of a fraudulent intent and conversion.
    6. Crops <®=>8 — Larceny of Standing Corn —InstrtjoAons—Lack of Fraudulent In-' tent.
    In a prosecution for taking from the possession of the owner growing, standing, and un-gathorod corn, where there was evidence for defendants that they took the corn without fraudulent intent, the court should have given special instructions requested, submitting the issue of their lack of fraudulent intent.
    Appeal from Fayette County Court; George Willrich, Judge.
    Lawyer Sampson and Marion Sampson were convicted of unlawfully taking standing corn from the possession of the owner, and they appeal.
    Judgment reversed, and cause remanded.
    John T. Duncan, of La Grange, for appellants. E. B. Hendricks, Asst. Atty. Gen., for the State.
   DAVIDSON, P. J.

Omitting formal parts, the complaint and information charge that Lawyer Sampson and Marion Sampson, etc., “did then and there unlawfully and fraudulently take from the possession of W. A. Euchs certain growing, standing, and un-gathered Indian corn, to wit, six pounds of Indian corn, of the value of 25 cents, the same being the corporeal personal property of the said W. A. Fuchs, and the same being then and there growing, standing, and remaining ungathered in the field and ground of the said W. A. Fuchs, without the consent.” etc.

The information charges joint offenses by the two defendants of the theft of the growing, standing, and ungathered Indian corn of the alleged owner. It is contended that this statute applies only to growing corn, which means immature and undeveloped corn in a growing condition. The statute 'goes further, and punishes the taking of any growing, standing, or ungathered corn. The facts show without question , that the corn was not what might be termed growing corn. It was matured corn, but still standing and the ears upon the stalks. Where a statute provides that an offense may he committed in divers ways, the pleader may charge them all conjunctively, and prove what he can, or he may select any particular phase of the statute, and charge that phase. This was not growing, but was matured, standing! and ungathereil, Indian corn. There was no error in this contention.

Appellants further contend that this is a joint prosecution, and necessarily that the parties were acting in concert with each other as accomplices or principals, and in order to sustain this conviction it must be shown that they were joint offenders, acting with a common purpose and in concert under that common purpose. We are of opinion that this proposition is correct, and in order to sustain this conviction the evidence must show that they were acting together from a common purpose in taking the corn.

Appellants further contend that where it is a joint offense, or jointly charged, the state would not meet the allegations by showing separate acts by the alleged joint actors; that under such circumstances the indictment or pleading could not combine the two as jointly acting together. We are of opinion this proposition is sound, and that the court should have given the special charges requested by appellants, instructing the jury that if one took corn by a separate act, and the other took corn by his separate act, with no concert of action between them, and each act was a different and separate act of the individual, they should be acquitted. In support of this see Lewellen v. State, 18 Tex. 538; Bennett v. State, 26 Tex. App. 672, 14 S. W. 336; Townsend v. State, 137 Ala. 91, 34 South. 382; McGehee v. State, 58 Ala. 360; Lindsey v. State, 48 Ala. 169; Elliott v. State, 26 Ala. 78; State v. Bridges, 24 Mo. 353; Hall’s Case, 97 N. C. 474, 1 S. E. 683; Cox v. State, 76 Ala. 69; Jackson v. State, 87 Ga. 435, 13 S. E. 689; 10 Ency. of P. & P., p. 555; Commonwealth v. McChord, 2 Dana (Ky.) 242; Griffin v. Mills, 39 N. J. Law, 587; 22 Cyc. 374-5. We deem it unnecessary to go into a discussion of this matter. This was alleged to be a joint offense, when the question was sharply presented that it was a distinct offense by each one, if an offense at all, and without collusion or joint action. This matter should have been submitted to the jury as requested by counsel in the special charges. Exceptions were timely and properly taken in the trial court, both to the charge and refusal to give the special instructions.

The evidence for the defendants is toMhe effect that in taking the corn each one testified he had no idea of defrauding the owner of it; that they had been picking cotton for him, and he owed them $10, and that thej; took this corn for a specified purpose, and" with no intent to steal it or to defraud the owner; that they thought under the circumstances it would make no difference to him; that they simply purposed to use it in catching horses which were outside in a lane. This in a general way was submitted by the court, and special instructions requested separately submitting this issue. If they took the corn under the circumstances indicated, they would not be guilty of a fraudulent intent and conversion. This charge should be specifically given upon another trial.

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