
    McANINCH v. STATE.
    (No. 3763.)
    (Court of Criminal Appeals of Texas.
    Oct. 27, 1915.)
    1. Criminal Law &wkey;j814 — Counts Charging Different Ownership — Instructions.
    Where, in a prosecution for cattle theft on two counts, the first alleging ownership of the stolen cow in the husband, and the second count in the wife, whom the evidence showed to claim ownership, both having testified to lack of their consent, it was not error to charge on the question of theft of a cow as the property of the husband.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 1821, 1833, 1839, 1860, 1865, 1883, 1890, 1924, 1979-1985, 1987; Dec. Dig. <@ux>814.]
    2. Criminal Law <&wkey;775 — Alibi — Instruction.
    A charge on alibi which told the jury that, if they had a reasonable doubt as to the presence of defendant at the time and place where the offense was committed, they should find him not guilty, sufficiently submitted the defense.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 1833-1837; Dee. Dig. <&wkey;> 775.]
    3. Larceny <&wkey;70 — Cattle Theft — Instruction — Sufficiency.
    A charge in a prosecution for cattle theft, in which the defense was that the cow was received in a trade, that if the jury believed that defendant received the cow in trade or sale, or if they had a reasonable doubt thereof, they must acquit, was not objectionable, as failing to charge when a theft is completed, and that defendant must be acquitted unless he participated in the actual taking as a principal; since the charge, as given, directly applied the law to the facts.
    [Ed. Note. — For other cases, see Larceny, Cent. Dig. §§ 182, 183, 185, 186; Dec. Dig. &wkey;70.]
    4. Criminal Law <&wkey;792 — Cattle Theft-Principal — Accomplice — Instruction-Sufficiency.
    An instruction in a prosecution for cattle theft that all persons guilty of acting together in the commission of an offense are principals, as are also others present knowing the unlawful intent who aid or encourage those actually engaged, that the offense of theft is complete when the alleged thief has taken actual possession and assumed ownership of the property, and that defendant should be acquitted unless he had some connection with the original unlawful taking of the cow, was sufficient, and not objectionable for a failure to define principals or to instruct that defendant must be acquitted if shown by the evidence to be an accomplice.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 1818-1820; Dec. Dig. &wkey;> 792.]
    5. Larceny <&wkey;70 — Cattle Theft — Instruction — Sufficiency.
    In a prosecution for cattle theft, a charge that, if defendant bought or traded for the cow, or was not connected with the original taking, he should be acquitted, coupled with a further charge on circumstantial evidence, was not objectionable for failure to charge that defendant should not be convicted if he was a receiver, and not the thief, since, under the charge, the jury were bound to find defendant not guilty- if he was not connected with the original taking, even though he had received the animal with knowledge.
    [Ed. Note. — For other cases, see Larceny, Cent. Dig. §§ 182, 183, 185, 186; Dec. Dig. i&wkey;> 70.]
    Appeal from District Court, Milam County ; J. C. Scott, Judge.
    George McAnineh was convicted of cattle theft, and he appeals.
    Affirmed.
    E. A. Camp, of Rockdale, for appellant. C. C. McDonald, Asst. Atty. Gen., for the State.
   DAVIDSON, J.

Appellant was convicted of cattle theft; his punishment being assessed at two years’ confinement in the penitentiary.

Exception was reserved to the court’s charge on several grounds. The first wab that the court erred in charging on the question of theft of the cow as the property of P. B. Hickson; it being claimed the cow did not belong to P. B. Hickson, but was the property of Lula Hickson, the wife of P. B. Hickson. The indictment contains two counts, one charging the cow to be the property of Lula Hickson, and the other charging the cow to be the property of P. B. Hick-son. They both testified in the ease, and to the want of consent on their part. There is some evidence showing that Mrs. Lula Hickson claimed the cow, and we suppose it was community property, though there is nothing said about it. These people were husband and wife, and she speaks of" it in the nature of a milk cow — a noted cow in the neighborhood where it was stolen. But there is no merit in this contention. Both counts were submitted to the jury, and they found appellant guilty.

The second exception to the court’s charge is he did not submit the issue of alibi. The court’s charge contains a stereotyped charge on alibi, and, after defining “alibi,” instructed them, if they had a reasonable doubt as to the presence of the defendant at the place where the offense was committed at the time of the commission thereof, to find him not guilty.

The third exception is that it does not charge when a theft is completed, and does not charge that the defendant musf be acquitted unless he participated in the acts constituting the theft as a principal. We do not believe the exception is well taken. The theory of the state was that appellant and another party committed the theft and drove the cow from Davilla to Cameron, and there was some evidence showing they were seen driving this cow at night. Appellant sold the cow at Cameron, and had the check made for the payment of the cow in the name of one W. J. Melear. His claim was that he traded for the cow with Melear, giving him a little mule valued at $10 and some money for the cow, and sold her to the butcher. When the butcher went to make out the check, appellant had it made out in favor of W. J. Melear, and himself indorsed Melear’s name on the back of it when he cashed it. He says this was done at Melear’s request. Now, the court charged the jury, in this connection, that if they should believe from the evidence that the defendant received the cow described in the evidence in trade or sale from one W. J. Melear, or any other person, they will find the defendant not guilty, or if they had a reasonable doubt thereof, they will acquit the defendant. This directly applied the law to the facts.

Another ground is that the court did not define who are principals, and did not instruct the jury that, if defendant is shown by the evidence to be an accomplice, he must be acquitted. The court charged on circumstantial evidence in the main charge, and then gave this charge at the request of appellant :

“You are further instructed that all persons are principals who are guilty of acting together in the commission of an offense. When an offense is actually committed by one or more persons, but others are present, and, knowing the unlawful intent, aid by acts or encourage by words or gestures those actually engaged in the cmnmission of the unlawful act, such persons so aiding or encouraging are principal offenders, and may be prosecuted as such. And in this connection you are further charged that the offense of theft is complete when the alleged thief has actually taken possession of and assumed ownership and control of the stolen property, and unless you believe from the evidence, beyond a reasonable doubt, that the defendant, Geo. McAninch, had some connection with the original unlawful taking of the cow, if the cow was unlawfully taken, you will acquit the defendant.”

We think this sufficiently presented the failure of the court to so charge, if such error be found in the court’s charge for its omission.

Appellant also excepts to the court’s charge for failing to instruct the jury that defendant should not be convicted if he was receiver, and not the thief. We have quoted a sufficient number of the charges, which, we think, presented this matter fairly to the jury, so they could not have made any mistake in finding on this particular question. His contention was that he did not steal the cow, but that he received it from Me-lear. The court instructed the jury directly, if that was true, to acquit and gave a charge on circumstantial evidence, and also upon the law of principals, which instructed the jury that, if appellant was not connected with the original taking, he could not be guilty of theft. This omission, if it be so treated, was not calculated to injure the rights of the accused in the face of the charges given. It would make no difference whether appellant received it or not; if he was not connected with the original taking, he should be acquitted, and the jury were so instructed, and this whether he received it innocently or fraudulently. If the jury believed he received the animal from Melear, as he says he did, and as was his contention, they would not have convicted him. They could have taken this view of it, but they did not, and there is evidence to support the finding that he was the original taker. The issues were, we think, fairly submitted to the jury on the different questions. There is no bill of exceptions in the record, and these are the matters we have thought necessary to mention in deciding the case.

The judgment is affirmed. 
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