42 Tex. 517 | Tex. | 1874
Appellant was tried in the District Court of Bexar county, on the 11th day of July, 1874, on an indictment charging him, his father, and four others, with the theft of “ one head of cattle, to wit, one cow,” the property of Bred House. A verdict of guilty was found by the jury, and the motion for a new trial being overruled, the case is presented for consideration on thirteen assignments of error and seven bills of exceptions. The objection to the court permitting Bred House, the alleged owner of the stolen cow, “ to testify to the ownership of the cow in question, from “ the mark and brand alone,” as set forth in exception No. 3, is decisive of the question as regards the improper admission of evidence of a material character. The Act of March, 1848, “regulating marks and brands,” requires every person in this State who has cattle, hogs, sheep, or goats, to have an ear-mark and brand different from the ear-mark and brand of his neighbor (Paschal’s Digest, Article 4655); that “ cattle shall “ be marked with the ear-mark, or branded with the brand of “ the owner on or before they are twelve months old.” That “if any dispute shall arise about any ear-mark or brand, it “ shall be decided by reference no the book of marks and “brands kept by the Clerk of the County Court.” That “it “shall be the duty of the Clerks of the County Courts * * * “* * * to keep a well-bound book in which they shall record “ the marks or brands of each individual who may apply to “ them for that purpose,” and that “ no brands, except such as “ are recorded by the officers named in this Act, shall be recog- “ nized in lamo as any evidence of ownership of the cattle, “ horses, or mules upon which the same may be used.” In the evidence on the trial there was nothing showing, or tending to prove that the cow in question was or ever had been the
Independent of the admission of illegal matter, in making the mark and brand, without evidence of recording, proof of ownership, and for which the judgment must be reversed and the cause remanded, the evidence in this case, admitting even the ownership of the cow by House, is not of that character to lead the mind to a deliberate conclusion that the conviction in this case was fully warranted by all the facts, and the spirit of our laws. Out of the six persons indicted, a severance being had, defendant is tried alone. The witnesses for the State show that he, like others of his age in Western Texas, was in the habit of hiring himself to different persons to hunt or drive stock ; that the herd in which the cow was found was driven by four or five persons, of which he was one; that the drove contained about five hundred head, with a great variety of brands; that the herd was under the control of defendant’s
The judgment is reversed and cause remanded.
Reversed and remanded.