
    WILLIAMS v. STATE.
    (No. 9215.)
    (Court of Criminal Appeals of Texas.
    Oct. 14, 1926.)
    1. Larceny <&wkey;>40(ll) — Proof that tires were stolen from H. Motor Company held not to sustain allegation of talcing thereof from possession of H.
    Proof that automobile tires were stolen from. H. Motor Company held not to sustain allegation of taking thereof from possession of H., fact that H. 'was manager of such motor company not being proof that he was in possession.
    2. Larceny &wkey;>32(l) — Possession may be alleged to be in actual owner or one holding property for him.
    In theft cases, possession may be alleged to be in actual owner, who is general owner, or it may be in some person holding'property for actual owner, who is special owner.
    Commissioners’ Decision.
    Appeal from Collin County Court; T. O. Murray, Judge.
    G. A. Williams was convicted of misdemeanor th^ft, and he appeals.
    Reversed and remanded.
    John Doyle, of McKinney, for appellant.
    'Tom Garrard, State’s Atty., and Grover C. Morris, Asst. State’s Atty., both of Austin, for the State.
   BERRY, J.

The appellant was. convicted in the county court of Collin county for the offense of .misdemeanor theft, and his punishment assessed at a fine of $100 and confinement in the county jail for a term of 30 days.

The count in the indictment on which the appellant was convicted charges:

That he “did then and there unlawfully take from the possession of H. J. Harris, two automobile tires of the value of $20, and two tubes of the value of $4, of the aggregate value of $24, without the consent of the said H. J. Harris, the same then and there being the corporeal personal property of and belonging to the said H. J. Harris, and with the intent then and there on the part of the said G. A. Williams to deprive the said H. J. Harris of the value thereof, and to appropriate the same to the use and benefit of him', the said G. A. Williams.”

This case must be reversed, because the facts proved do not correspond with the allegations contained in the indictment. The undisputed testimony shows that the property stolen belonged to the Harris Motor Company, and that it did not belong to H. J. Harris. H. J. Harris testified as’follows:

“My name is H. J. Harris. I reside in McKinney, Tex., and am manager of Harris Motor Company, which has its place of business in McKinney, Collin county, Tex. On the 26th day of September, 1924, there were two tubes and two casings taken from the Harris Motor Company. They were worth about $26. I did not give my consent for any one to take the tubes and casings. They were taken from the service part of the business, in the front end of the building occupied by the Harris Motor Company. The defendant, G. A. Williams, worked for the Harris Motor Company back in the repair department in the back of the building. He had nothing to do with the business in the service department. He was a mechanic in the repair department. These tires had been used in demonstration service, but were not damaged.”

The state’s witness, Gladden, testified that he had charge of the service department of Harris Motor Company.

It will be observed that this witness utterly fails to testify to any fact that would lead to the conclusion that he was in possession of this property at the time it was stolen. The mere fact that' he was manager for the Harris Motor Company is not sufficient to warrant this court in assuming that he was therefore in possession of the property belonging to said company. The rule is well settled in this state that in theft cases possession may be alleged to be in the actual owner, who is the general owner; or it may be in some person holding the property for the actual owner who is the special owner. Osborne v. State, 93 Tex., Cr. R. 54, 245 S. W. 929. However, as in this case, when it is alleged that the- property is taken from the possession of one party, and the proof shows that the property belonged to another party,' before a conviction can be sustained it must be shown by the testimony that the party named in the indictment as the' owner was in the actual possession of the same holding it for the real owner at the time of the theft. In this ease, the indictment charges that the property was in the possession and was owned by H. J. Harris. The proof shows that the property was taken from the possession of the Harris Motor Company. There is no proof that Harris was in possession of said property at the time it was taken. The mere fact that he was manager of the Harris Motor Company would not supply this proof. In order to have met the requirements of the law, the proof should have gone further and shown that as manager, or in some other capacity, he had control over- and possession of the property alleged to have heen stolen from the Harris Motor Company, the party whom the proof shows to he the actual owner of said property.

The proof failing to do this, it occurs to us to be a clear ease of where the allegations and the proof do not correspond. So believing, it is our opinion that the judgment should be reversed and the cause remanded.

PER CURIAM. The foregoing opinion of the Commission of Appeals has been examined by the judges of the Court of Criminal Appeals and approved by the court. 
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