172 THEFT AND REMOVAL OP ANIMALS. 



It is essential that the accused person should have had pos- 

 session to some extent of the animal. Therefore where a 

 person pointed out an animal in a pound to a pound-keeper 

 as his and received money as the purchase price and the 

 pound-keeper afterwards turned it out on his range where it 

 was found by the owner, it was held that there was no taking 

 possession sufficient to constitute larceny.^^ But in Texas, 

 where no asportation need be shown, it was held that one 

 who pointed out a cow and a calf on a range, saying he owned 

 them, and selling them, was guilty of larceny.^* And one 

 who sells and delivers an animal to one person and' without 

 re-purchasing, sells and delivers it to another, is guilty of 

 theft.»9 



Where one called up gentle hogs in their range and sold 

 them to another who was present, these acts were held to con- 

 stitute a taking, as the seller exercised control over the ani- 

 mals by calling them up and had them constructively in his 

 possession and converted them by delivery accompanied by 

 actual possession, but it was said that a mere sale was not 

 equivalent to a taking.*" Thus, where it was shown that 

 A., falsely claiming an animal running on the range to be his, 

 made a bill of sale of it to W., receiving pay from the latter, 

 but the animal was never in the possession, actual or con- 

 structive, of either A. or W., it was held that there was no 

 taking sufficient to constitute theft.*^ 



Proof that the defendant shot a hog and pursued it but did 

 not catch it or kill it, and that it was found by the owner, but 

 not in the defendant's possession, is not sufficient to sustain 

 a conviction.*^ And in another case an instruction that the 



not to one saddled and bridled and hitched to a tree: Cochran v. State, 

 36 Tex. Cr. 115. 



" Peo. V. Gillis, 6 Utah 84. 



"' Doss V. State, 21 Tex. App. 505. Cf. Hardeman v. State, infra. 



"' Hooper v. State (Tex. Cr.), 25 S. W. Rep. 966. 



" Madison v. State, 16 Tex. App. 435. 



" Hardeman v. State, 12 Tex. App. 207. Cf. Doss v. State, supra. 



" Minter v. State, 26 Tex. App. 217. 



