# Cox v. State

> Court of Criminal Appeals of Texas · June 17, 1942 · 144 Tex. Crim. 554

URL: https://www.frixlaw.com/law-library/cases/3952876

## Case

- **Full name:** Jesse Cox v. the State
- **Court:** Court of Criminal Appeals of Texas
- **Decided:** June 17, 1942
- **Citations:** 144 Tex. Crim. 554; 164 S.W.2d 848; 1942 Tex. Crim. App. LEXIS 420
- **Precedential status:** Published
- **Opinion:** Addendum by Davidson
- **Judges:** Hawkins, Davidson
- **Cited by:** 5 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/3952876

## Opinion text

ON MOTION FOR REHEARING.
DAVIDSON, Judge.
Appellant, in his motion for. rehearing, for the first time, insists that the evidence fails to affirmatively show that the hogs were taken without the consent of the owner, and that, therefore, it is insufficient to support the conviction. The proof shows that the hogs belonged to Brown and that Archie Cone was the special owner, he having the care, control and custody thereof. Such allegation of ownership in Cone was authorized.
Cone testified.as a witness in behalf of the State. He repeatedly referred to his having “missed the hogs,” and to the hogs that “we lost,” but did not, directly or positively* say that the hogs were taken without his consent.
We recognize the rule, as stated in Holmes v. State, 120 S. W. (2d) 595 , 136 Tex. Cr. R. 26 , and authorities there cited, to be: Where the owner of alleged stolen property testifies in the case, he must, by positive and direct testimony, state that the property was taken without his consent, and, unless he does so testify his lack of consent will not be inferred from other circumstances in evidence.
*558
But, the rule is not applicable or controlling here; for, in appellant’s confession, offered in evidence by the State, he not only admitted the theft of the hogs, and the subsequent sale of them to Hill, but stated:
“I knew that the hogs belonged, to Mr. Brown and that I didn’t have any right to sell them and I didn’t have permission to sell the hogs.
it_ _ _ _ _____ _ _ _ _ _ _____ _ — — — — — — — and I didn’t have permission from Mr. Brown or anyone else to take the hogs and sell ' them.”
Declarations in a confession constitute direct and positive, rather than circumstantial, evidence. Burk v. State, 95 S. W. 1064 , 50 Tex. Cr. R. 185 ; 18 Tex. Jur., Sec. 79.
Eliminating from consideration the testimony of Cone, we find that the State, by the confession of appellant, and by the testimony of the accomplice and the purchaser of the hogs from the appellant, showed, by direct and positive testimony, not only all of the constituent elements of the crime of hog theft, including the taking without the consent of the owner, but also appellant’s guilty connection therewith.
The motion for rehearing is overruled.
The foregoing opinion of the Commission of Appeals has been examined by the Judges of the Court of Criminal Appeals and approved by the Court.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/3952876. Public record. Not legal advice.