Green v. State
1949 Tex. Crim. App. LEXIS 1219, 153 Tex. Crim. 442, 221 S.W.2d 612 (1949)
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Rule of Law:
For the purpose of a theft charge, an owner maintains actual possession of livestock even when the animals are roaming freely on an open range, as animals cannot wander out of the possession of their owner.
Facts:
- Appellant Green, his brother Ben Green, and his nephew Homer Green met in Saratoga and drank whiskey.
- They drove to a woodland area approximately five to six miles away.
- While in the woodland, they killed five hogs.
- The hogs were the joint property of W. W. Minter and his deceased son.
- Minter had the actual care, control, and management of the hogs, which were running on the open range.
- The men loaded the dead hogs into their automobile.
- They transported the hogs to a tourist cabin in Beaumont where they began to dress them.
Procedural Posture:
- The State of Texas charged appellant Green by indictment with felony theft of hogs.
- The indictment alleged that the hogs were the property of and in the possession of W. W. Minter.
- At the close of the state's case in the trial court, Green moved for a directed verdict of not guilty, arguing a variance between the indictment and the proof on the issue of possession.
- The trial court denied the motion.
- Green was convicted and his punishment was assessed at four years in the state penitentiary.
- Green (appellant) appealed his conviction to the Texas Court of Criminal Appeals.
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Issue:
Does an owner of livestock lose actual possession for the purposes of a theft charge when the animals are on an open range, creating a fatal variance with an indictment alleging the owner's possession?
Opinions:
Majority - Krueger, Judge
No. An owner does not lose actual possession of livestock simply because the animals are on an open range. The court reasoned that animals cannot wander out of the possession of the owner and into the possession of another party. W. W. Minter was a part-owner and exercised the actual care, control, and management of the hogs, which is sufficient to establish his possession for the purposes of the theft indictment. Therefore, there was no variance between the indictment alleging Minter's possession and the proof showing the hogs were on the range. The court also dismissed appellant's other claims, finding that a requested jury charge on misdemeanor theft would have contradicted the law of principals, that the state's Dead Man's Statute did not apply to criminal cases, and that the prosecutor's closing argument did not constitute reversible error.
Analysis:
This case clarifies the legal concept of 'actual possession' in Texas theft law as it applies to livestock. The court's holding prevents the creation of a legal loophole where a defendant could argue that animals roaming freely are not technically in anyone's possession. It establishes that control and management are the key indicators of possession, not constant physical proximity. This precedent is crucial in agricultural jurisdictions, reinforcing that ownership and control over free-ranging animals are legally protected against theft.
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