
    WARD v. STATE.
    (No. 4605.)
    (Court of Criminal Appeals of Texas.
    Oct. 17, 1917.
    On Motion for Rehearing, Nov. 7, 1917.)
    1. Larceny <&wkey;32(5) — Indictment—Alleging Ownership.
    Where the owner of a suit case and a suit of clothes which were at the residence of his father and mother wrote to his brother to send them to him, and the brother obtained their custody and control from the father and mother for this purpose, the brother was at least the special owner, and an indictment for theft properly alleged Ms ownership.
    On Motion for Rehearing.
    2. Larceny <&wkey;70(3) — Instructions—Ownership op Property.
    On a trial for theft instructions that, the state having failed to sustain the allegation that the alleged stolen property belonged to W., or to show that he had such possession as constituted him a special owner, the jury would return a verdict of not guilty, that the mere temporary custody of the property would not constitute W. the owner, and that in order to convict defendant the jury must find that his possession was not merely temporary, but that he had the care, management, and control of the Stolen property at the time of its taking, and that if W.’s brother owned the property and W. received it for the purpose of sending it to his brother and had no other right or interest in it, the jury would find defendant not guilty, all turned upon the ownership of the property and the sufficiency of the evidence to support it, and were properly refused, where the facts showed that W. had such a special ownership as supported the allegation of ownership in him.
    Appeal from Ealls County Court; F. S. Heffer, Judge.
    Will Ward was convicted of theft, and he appeals.
    Affirmed.
    W. E. Rogers, of Marlin, for appellant. E. B. Hendricks, Asst. Atty. Gen., for the State.
   DAVIDSON, P. J.

Appellant was convicted of theft of property under the value of $50.

The case is one of circumstantial evidence, but under the facts we are of opinion that the state sufficiently made its case. In order to review appellant’s contention it may be necessary to state some of the evidence. This shows that the alleged owner had a brother who was living in Ft. Worth. He had written to the alleged owner to send his suit case and a suit of clothes to him at Ft. Worth. It seems the suit case and the suit of clothes were at the residence of the father and mother of the alleged owner. They brought the clothes and suit case to the town of Marlin and turned them over to the alleged owner for the purpose of being shipped or conveyed to the brother at Ft. Worth. The alleged owner received the suit case, which contained the suit of clothes, and expected to send it to Ft. Worth by a certain woman who was going on the train, but by some means he did not find her, and concluded to send it by express. Before taking it to the express office for shipment he left it in a saloon, with the expectation of returning at the proper time to get it for the purpose of sending it to Ft. Worth. When he went for the suit case it had been taken. This is enough of the testimony to illustrate the question mainly relied upon by appellant, to wit, that the alleged owner was not such an owner under the law as justified the indictment alleging ownership in him. We are of the opinion that he was sufficiently the owner within the contemplation of the statute to authorize the allegation of ownership. The father and mother had turned it over to him for the purpose of its being shipped. He had exclusive control of it, and care and management, sufficiently so at least to make him the special owner. The objections to the testimony in this respect, as well as to the charges given and refused, are not well taken. We are of opinion that the court was correct in holding the indictment sufficiently alleged the ownership. This seems to be the main contention of appellant, and we are of opinion that it is not well taken.

The judgment is affirmed.

On Motion for Rehearing.

At a recent date of the present term the judgment herein was affirmed. Appellant’s contention, in his motion for rehearing, is that the court passed the case off on the sufficiency of the evidence, and that such was not his contention. He says that the proposition he was urging was the failure of the court to give certain requested instructions, and this as to the law of the case as to alleged ownership. We have reread the record and see no reason for changing what was announced in the original opinion. The facts show, as stated in the original opinion, how the alleged owner, Will Wallace, became possessed of the suit case and suit of clothes. Appellant’s contention was and is that Will Wallace was not such owner as would support such allegation; that his was only a temporary possession, and did not fulfill the measure of the law. In a certain sense the opinion turned upon the point of sufficiency of the evidence, and necessarily so in order to meet the question urged. We stated in the opinion, after stating the facts, as follows:

“This is enough of the testimony to illustrate the question mainly relied upon by appellant, to wit that the alleged owner was not such an owner under the law as justified the indictment alleging ownership in him.”

We held that it was sufficient; that he had such exclusive control, care, and management as to make him the special owner. In disposing of it we held:

“The objections to the testimony in this respect, as well as to the charges given and refused, are not well taken. We are of opinion that the court was correct in holding the indictment sufficiently alleged the ownership. This seems to be the main contention of appellant, and we are of opinion that it is not well taken.”

Appellant, we think, is somewhat in error in his statement that he did not rely on the insufficiency of the evidence. Every charge he asked was based upon the theory that the evidence was not sufficient, in that it did not support the allegation of ownership. The question raised was that the evidence did not support ownership in Will Wallace. We take the first charge requested by appellant as an example. It reads as follows:

“The state having failed to sustain the allegation in the information that the alleged stolen property belonged to Will Wallace, or to show that he had such possession as to constitute him a special owner, you will return your verdict in this case as follows: ‘We the jury find the defendant not guilty.’ ” Signed by the attorney for defendant.

This clearly raises the sufficiency of the evidence as to the ownership. 'If Will Wallace was not the owner within the meaning of the law under the facts, then this charge should have been given. In fact not only was there no error In refusing this charge, but no error in refusing the motion for new trial on the ground that the evidence did not support this allegation in the indictment. If he was the special owner, then the evidence was sufficient on that theory.

The second special instruction was to the same effect, except somewhat enlarged. In that charge he asked the court to instruct the jury that:

“The mere temporary custody of the items of personal property alleged to be stolen from Will Wallace would not constitute him the owner of the same. In order to convict this defendant of the charge herein, you must find from the testimony that his possession was not merely temporary, but that he had the care, management, and control of the said alleged stolen property,' at the time of its taking”

—and applies the law to the effect that if his brother owned the property, and Will Wallace had received the same for the purpose of sending it to his brother, at Ft. Worth, and left it setting in a saloon from where it was taken, and that Will Wallace had no other right or interest in it than to send it to his brother, the jury would find defendant not' guilty. The other charge is practically to the same effect. It all turned upon ownership and the sufficiency of the evidence to support it. If the evidence did not support that allegation in the information, a direct attack upon the sufficiency of the evidence would have been as effective. It is the issue, and the only one relied upon by appellant. He presented the matter in more . ways than one as to the sufficiency of the 'evidence showing ownership. We held before and hold now that the court was correct in holding this is a sufficient special ownership to authorize the allegation in the information that Will Wallace was the owner.

The motion for rehearing is overruled. 
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