ownership; want op consent. 177 



estray.''* So, one who drives away cattle which have wan- 

 dered from the owner's enclosure is not less guilty of larceny 

 because he is ignorant of the true owner and the latter does 

 not know where they are.'''' But where an agent of cattle- 

 owners, employed by them to catch thieves with their con- 

 sent and authority, co-operates with suspected thieves in 

 planning and effecting the taking of the cattle, for the pur- 

 pose of having the thieves arrested while driving the cattle 

 away, this is not larceny, the property having been taken with 

 the owner's consent.''® 



Where one borrowed a horse to go to church and, while 

 there, the horse was stolen, such temporary custodian was 

 held not to be legally in possession of the horse so that his 

 want of consent had to be shown. '"^ But it is otherwise where 

 one has been for some time in the actual and exclusive pos- 

 session and control of the animal, though he is not the real 

 owner.''^ Where a horse got loose from the owner and was 

 taken in the field of a third person and put in the stable, 

 whence he was stolen, it was held that he was in the con- 

 structive possession of the owner and the actual possession 

 of the third person, and that the indictment might well allege 

 the possession to be in either.''^ In the case of an estray that 

 has been taken up, it may be alleged that the ownership is in 

 the taker-up, and not that it is unknown.*" So, an animal 

 may be said to be the property of an agistor.*^ 



Though it may not be necessary to allege the ownership in 

 the indictment, if it is alleged it must be proved.®^ The fol- 

 lowing were held to be fatal variances : Where it was alleged 



" Lamb v. State, 41 Neb. 356; State v. White (Mo.), 29 S. W. Rep. 591. 

 '° State V. Martin, 28 Mo. 530. 

 ™ State V. Hull (Oreg.), 54 Pac. Rep. 159. 

 " Emmerson v. State, 33 Tex. Cr. 89. 

 "Von Emons v. State (Tex. Cr.), 20 S. W. Rep. 1106. 

 " Owen V. State, 6 Humph. (Tenn.) 330. 



" Swink V. State, 32 Tex. Cr. 530; Jinks v. State, 5 Tex. App. 68. 

 " Rex V. Woodward, .1 Leach C. C. 357 n. 



'" Smith V. State, 43 Tex. 433. And see Murray v. U. S. (Ind. Ty.), 35 

 S. W. Rep. 240. 

 12 



