In Madison v. State, 16 Tex. Ct. App. 435 (1884) the defendant was convicted of stealing hogs. Mistakenly believing that the hogs belonged to the defendant, Grooms informed the defendant that the hogs had ranged into Grooms's field. Although the hogs actually belonged to a third party, the defendant called the hogs up and purported to sell the hogs to Grooms. The next day, Grooms put the hogs into his pen. The Court held that the defendant's calling up and selling the hogs constituted a constructive delivery to Grooms, even though Grooms did not yet have possession: In this case, though the hogs were in their accustomed range, yet they were gentle and were called up by defendant or Grooms, and were right up at them, in their presence, and could have been immediately driven off by either or both when defendant made his sale and constructive delivery of them to Grooms. Under these circumstances, had not the hogs been "taken," in legal contemplation, by defendant before the sale? He called them up; this was exercising control over them certainly, and after they came up, and whilst they were thus in his control, if he, knowing them not to be his property, sold and constructively delivered them to Grooms, who afterwards took them into actual possession under the purchase, it would in our opinion, bring the case fully within the rule quoted above from Russell, viz: that "if the thief fraudulently procure a person innocent of any felonious intent to take the goods for him, his offense will be the same as if he had taken the goods himself." The appropriation, so far as defendant is concerned, was obvious, and the taking did not rest solely upon the subsequent exercise of ownership and possession by Grooms. Id. at 442-443.