History Mystery: Was Horse Stealing a Capital Crime in Texas?

Well, folks, I’m back . . . as in, back on Twitter. You can follow me at @luckettdr. I’m not going to sweat out my follower count too much – I like being able to opine freely, and lately that has been on politics – but I am trying to make an effort to bring more research-relevant content to my timeline. For my purposes, that means searching for tweets about horse stealing.

And after a couple of days doing just that I realized pretty quickly that there is a gaping hole in my upcoming book, Never Caught Twice: Horse Stealing in Western Nebraska, 1850 – 1890. Although I talk at length about horse stealing in Nebraska, including its status in the penal code, I don’t mention similar or comparable laws in Texas. While that makes sense, obviously, given the title, the myth that horse thieves were lawfully hanged in Texas remains strong:

This one is my favorite:

My guess is . . . no, I don’t think anyone should be worried about being hanged for horse stealing. This is not to say that horse stealing is not still a problem (because it is), and the fact that people are bringing up hanging at all when referencing modern horse thieves speaks both to the gravity of the problem and the power of the myth itself. But is it actually a myth, or can horse thieves face the death penalty in Texas still?

Let’s find out!

The first thing we need to do is research what the laws in Texas actually were and read what they said about horse stealing. Since we are looking for a Texas state law, and Texas state laws were published, all we need to do in theory is consult the Texas penal code. The earliest digitized copy of Texas criminal law currently available through the Texas Law Library is the 1879 Penal Code of the State of Texas. Passed by the legislature on February 21, 1879, the code superseded preexisting Texas law and exhaustively laid out what was against the law in Texas, and what the prescribed penalty should be for each offense. Since this is a text-searchable PDF, all we need to do is hit Ctrl-F and search for “horse” until we get to the appropriate law.

If you want to skip the searching, you can find the relevant statute on page 97, in Title XVII, Chapter 11:

“If any person shall steal any horse, ass or mule, he shall be punished by confinement in the penitentiary not less than five nor more than fifteen years.”

Here’s a screenshot of the law:

Notice that the punishment for stealing cattle was two to five years in jail, as opposed to between five and fifteen. Cattle were valuable in Texas, but apart from commodity production and pulling draft they had little utility. The difference in punishment between the two underscores how important horses really were, even if horse thieves did not necessarily face the death penalty for their crimes.

This seems pretty conclusive, right? It would be, except for the fact that the above law is from 1879. Texas established its independence from Mexico over three decades earlier, and the United States annexed it in 1845. Needless to say, a lot of violence occurred in Texas during the preceding thirty years: the Texas Revolution, the Mexican-American War, the Civil War, a generation of warfare against the Comanches, and the explosion of Texas cattle ranching across the Plains. Wouldn’t it be more likely for horse stealing to be a capital crime during this era, as opposed to 1879, when things presumably cooled down a little bit in the Lone Star State?

To check the law even earlier, we will have to exit the Texas State Law Library and head over to the Legislative Reference Library of Texas. This is where we will find a PDF copy of The Penal Code of the State of Texas adopted by the sixth Legislature, passed into law and published in 1856. This volume represents a codification, rather than a revision, of existing laws – meaning that the laws inside were already on the books in one way or another, but had not yet been incorporated into a single body of legal code.

Once again, it does not take long to find out what the punishment for horse stealing was in Texas in 1856:

“Article 765. If any person shall steal any horse, gelding, mare, colt, ass, or mule, he shall be punished, by confinement in the Penitentiary, not less than two, nor more than seven years.” Here is a screenshot of the law from the book itself:

One difference that should immediately stand out is that the punishment for horse stealing was actually more severe in 1879 than it was in 1856. Why was that? There are a lot of reasons for this (I talk about them in the book, of course), but one important factor bears mentioning here: horses were more valuable after the Civil War than before. The massive herds of mustangs were declining or moving north, growing ranches required enormous numbers of horses for their remudas, and urbanization elsewhere pulled horses out of rural markets. There was more competition for horses during the late 1870s, and as demand and prices for horses rose so, too, did their role in society. They were used for transportation, plowing, pulling draft, and countless other applications. This made them more ubiquitous and more essential to everyday life.

Yet despite their critical role horses were subject to a host of maladies, from epizootics to snake bites to lighting strikes to old age. They were expensive and virtually uninsurable, and people without the funds to buy multiple horses often overused the ones they had, leading them to age rapidly. Thus, of all the possible problems to plague horse owners, horse thieves shouldered much of the burden, as they were easily scapegoated and could presumably be controlled more easily with threats and punishments than lighting strikes or poisonous snakes.

One of the most famous horse theft hanging scenes can be found in the popular miniseries Lonesome Dove (1989). Shows like Lonesome Dove continued to propagate the belief that horse thieves were legally hanged. Although this is clearly a vigilante execution it is also apparent in the series that there will be absolutely no consequences for these actions.

Naturally, one possible punishment for horse stealing was hanging, and the popular mythology around hanging horse thieves was just as strong in the late-1870s as it is now. The question of whether or not vigilantes frequently hanged horse thieves in Texas is a separate question that deserves a separate answer, but if we assume that it was a strong possibility, then the harsher punishment prescription in 1879 makes a lot of sense. Texas levied five to fifteen year prison sentences against horse thieves not only in order to disincentivize the stealing of an incredibly valuable and uniquely indispensable form of property, but also in order to convince would-be vigilantes that the state was serious about punishing horse thieves.

This post just scratches the surface of what I’ve come to believe is a fascinating, multilayered story about horse theft and its vastly unappreciated and misunderstood role in shaping our laws, politics, culture, and history. It is a story I try to tell in my book. And even though my focus is on Nebraska, there are a LOT of parallels here between Texas and Nebraska law with respect to how they contend with horse stealing.

In the meantime, though, it seems as though our mystery is solved: horse stealing is not, and so far as I can tell never was, a hanging offense in the Lone Star State. Case closed.

Now comes the hard part: convincing everyone on Twitter.