
    VANDERHIDER v. STATE.
    (No. 7907.)
    (Court of Criminal Appeals of Texas.
    Oct. 29, 1924.
    Rehearing Denied Nov 26, 1924.)
    1. Criminal law <&wkey;>1092(9), 1111(1) — Bills of exception filed within extension, granted on application made after statutory period, not considered, and record conclusive thereon.
    Bills of exception filed within 30-day extension, granted on application made after 30 days provided by statute, cannot be considered, in absence of order of record extending time within statutory period, though application recited that court had theretofore granted 60-day extension; Supreme Court being bound by record.
    2. Larceny <&wkey;32(5) — Special, owner’s liability io real owners immaterial.
    Liability of ginner to real owners of stolen cotton held immaterial as respects rights, to allege ownership in former, under Code Cr. Proe. 1911, art. 467.
    3. Larceny <®=o8 — Ginned and baled cotton in gin yard held subject of theft; “possessioni.”
    Ginned and bailed cotton in gin yard, awaiting presentation of tickets by owners, is subject of theft, and in possession (i. e., in care, control, and management) of somebody, within Pen. Code 1911, art. 1334, though not such character of property as to require active control or management.
    [Ed. Nóte. — For other definitions, see Words and Phrases, First and Second Series, Possession.]-
    4. Larceny <&wkey;32(5) — Owners of ginned cotton held not placed in possession by ginner’s tfelivery of tickets therefor.
    ' Tickets issued and delivered by ginner for bales of cotton as ginned did not place owners in possession, but only evidenced right to possession when presented, though ginner, in whom special ownership was alleged, waived rule and permitted parties to take cotton without presenting tickets.
    5. Larceny <&wkey;>32(5) — Baled cotton in gin yard held not lost property deemed in owner’s possession wherever appropriated by thief.
    Ginned and baled cotton in gin yard, awaiting delivery to owners on presentation of tickets, held not lost property, which is deemed in possession of owner wherever appropriated by thief.
    6. Larceny <&wkey;6G — -Ginner's removal of bailed cotton’ from place to place in gin yard held not'indicative of lack of possession necessary to make him special owner,.
    That ginner moved, ginned, and baled cotton from place to place in his gin yard, to suit his own convenience in handling other cotton as it was ginned, held not to indicate lack of possession required to make him special owner.
    Appeal from District Court, Goliad County; John M. Green, Judge.
    J. C. Vanderhider was convicted of theft of • property worth over $50, and appeals.
    Affirmed.
    Will T. Bagby, of Hallettsville, for appellant.
    Tom Garrard, State’s Atty., and Grover C. Morris, Asst State’s Atty., both of Austin, for the State.
   HAWKINS, J.

Conviction is for theft of property over the value of $50, with punishment assessed at confinement in the penitentiary for 2 years.

The indictment. alleges ownership of the property to _ have been in W. E. Stockton. The evidence shows that 3 bales of cotton were stolen, the real owners of which were Moore, Calhoun and Howell, respectively. Stockton was a ginner. The three parties mentioned had taken seed cotton to his gin, and after it had been ginned and baled, it was placed in the gin yard. This yard consisted of about 2 acres inclosed with a wire fence. The gate was supposed to be kept closed at night, though the evidence shows that perhaps this was not always done. The cotton in question was taken at night. The record contains much evidence relative to the handling of the cotton after it was ginned, which may be summarized as follows: Parties would deliver seed cotton to the gin, and after it had been run through the gin stands and baled, the bales of cotton would be dumped out in the gin yard. Tickets would be delivered by Stockton to the owner of the cotton, the tickets showing the weight and number of the bale. When the owner desired to secure the cotton from the gin yard, he was supposed to go to Stockton or some of his employes present the ticket, and take the cotton, or, if the owner sold the cotton, the ticket would be transferred to the purchaser, and when the purchaser desired to secure the cotton, the ticket was supposed to be so presented by him. This rule was not strictly followed; it being the custom of Mr.'Stockton and his employes to permit parties whom they knew to go into the gin yard and pick out their own cotton. After the cotton was ginned, Stockton would have it moved from one place in the gin yard to another, as his own convenience required, and to make room for other cotton as it was ginned.

The point is made that the evidence fails to show that Stockton bore such relation to the cotton as would characterize him as a special owner under the statute, and, therefore, that the evidence fails to meet the allegations in the indictment in that respect. Three bills of exception appear in the record which may not be considered for the reason that they were filed too late. Court adjourned on the 24th day of February, 1923. No order of the court appears in the record extending the time for filing bills of exception and statement of facts beyond the 30 days provided by the statute. On April 2,. long after the expiration of the 30 days, application was made for another 30-day extension; it 'being stated in tbe application that the court had theretofore at appellant’s request granted 60 days for such filing. This application was granted, and 30 days more allowed. The hills were filed within this last 30-day extension, which would he in ample time, provided an order appeared in the minutes of the court authorizing the first 60-day extension, hut we are bound by the record and not by the recitals in the application as to the 60 days having been allowed in the first instance. However, if these bills should be considered, we think they are not upon a vital issue in the case, except as to the complaint in the motion for a new trial that the evidence does not support the allegations in the indictment as to ownership in Stockton, and this necessarily calls for a review upon the general question as to whether the evidence supports the verdict. Article 457, OC. P., provides:

“Where one person owns the property, and another person has the possession, charge, or control of the same, the ownership thereof may be alleged to be in either.”

Article 1334 of the Penal Code reads as follows:

“Possession of the person so unlawfully deprived of property is constituted by the exercise of actual control, care and management of the property, whether the same be lawful or not.”

This question of special ownership has many times been the subject of discussion, and we do not feel called upon to review at any length the authorities, or to extend this opinion upon the subject. Frazier’s Case, 18 Tex. App. 434, is the leading case, probably, upon the point. In the beginning of that opinion Judge White used this language:

“We will also see as we proceed that really ‘ownership’ means nothing more than ‘possession,’ and that ownership and possession are but synonymous or convertible terms under our statutes on the subject of theft.”

We find in the statement of facts in the present case some reference to the question of the liability of Stockton to the real owners of the cotton. We regard this as immaterial. In Torrence v. State, 85 Tex. Cr. R. 310, 212 S. W. 957, Judge Davidson again reviews the question of special ownership, and used this significant language:

“Ownership may be alleged in the special owner, whether the special owner would be responsible to the real owner or not. The proposition is, he must be under such circumstances in actual control, care, and management of the property at the time it was taken. See King v. State, 43 Tex. 351; King v. State, 100 S. W. 387-389; Howard v. State, 77 Tex. Cr. R. 185, 178 S. W. 506.”

In the present ease the cotton was not that character of property which required ¡ active control or management such as the care and management of some character of property demands, but it was the subject of theft and unquestionably in the “possession” of somebody, that is, in somebody’s care, control and management. The tickets issued by Stockton and delivered to the owners for the bales of cotton as ginned did not thereby place the owner in possession of the cotton, but only evidenced a right of possession when presented by the holder of the ticket, and this would be true although Stockton may have waived the rule, and permitted parties whom he knew to take cotton whether presenting the tickets or not. The mere holding of the ticket by the owner while the cotton remained upon Stockton’s gin yard no more placed the possession of the cotton in the owner than the holding of a ticket for passage on a railroad train would make the holder thereof a passenger until he had actually begun his journey which was authorized by the ticket.

The cotton in question did not occupy the status of lost property which is in law deemed in possession of the owner wherever appropriated by the thief. Doolin v. State, 92 Tex. Cr. R. 55, 241 S. W 479. Hie real owner of the cotton had nothing to do with caring for it, controlling it, or managing it, after it had been ginned until he took actual possession thereof, and removed it from the gin yard. The fact that Stockton moved the cotton‘from place to place in the gin yard to suit his own convenience in handling other cotton as it was ginned does not to our minds indicate a lack of that character of possession required to make him a special owner. It follows from what we have said that we are not in accord with appellant’s contention that the elements of special ownership in Stockton were absent.

Believing the evidence supports the allegation of ownership in him, and finding no error in the record, the judgment is affirmed. 
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