*1 Reports. [February, 84 Texas Criminal 504 I. Cannon v. C. 5, February 1919. Decided 5073.
No. Becently Property—Charge of Stolen 1.—Theft of Cattle—Possession of Court. Where, cattle, prop- question of of upon trial of theft of erty explanation thereof was not recently consequent stolen and the or was, but that of the defendant question whether the stolen, re- party to of been from whom it was said versible error and submit a on the issue Prendergast, Judge, dissenting. thereon. 2. Offenses. —Same—Evidence—Intent—Other cattle, Where, of another the court upon of theft admitted a brand the one in and with same altered, intent, there was been on the claimed the State to have Davidson, Judge, Presiding dissenting. no reversible error. Stated—Charge 3. of Court. —Same—Bule always error for court to an issue adverse evidence, and is not this whether issue defendant when assuming recently the issue is reasonable account State, Following Smith v. proposition. other adverse 81, Rep., and other cases. 44 Texas Crim. Becently Property—Buie Stated. 4.—Same—Possession of Stolen where in the instant recent must be after subject error. case this was not shown the evidence a on this —Same—Charge Exceptions. 5. of Ceurt—Bill of objections Where the on sufficient, appeal. stolen was the same will reviewed of Knox. Tried below before District Court Appeal (cid:127) Hon. Milam. J. H. im- cattle; two years from a of theft Appeal penalty, conviction in the prisonment penitentiary. states the case. offenses: F. Cunningham, for appellant. J. On Rep., 77 State, Texas, 567; State, v. Texas Crim. Gray 41 v.
Gilbrith W. 337. Rep., 178 S. Rowe, Hendricks, General, Moses & J. H. Attorney Assistant E. B. McDonald, the State. of other On Burney, and Martin & State, 211; Barnett State, 31 Texas Crim. v. Rep., v. offenses: Kelley 834; State, Thompson 26 S. W. v. id., v. 592; Rep., 44 Willingham State, id., id., 465; v. 94 State, State, 76 Watters id., 805; Glover v. 57 W. State, Rep., 135 S. Crim. Rep., v. Texas 1038; Hardgraves 121, 188 S. W. Rep., 80 Texas Crim. 132; Longoria DAVIDSON, indictment 1919.] The State. for altering in the second count, in one cow of a the theft cow. known for what is try State elected case the At the opening, there was a *2 record, younger cow, facts .developing the as older course, This, of altered. been had also brand which the cow should which animal upon and the. the case designated the Mat- to belonged the cow theory The State’s predicated. control and supervision under Co., which ador Land and Cattle reference it to say, Suffice owner. of who the fact that relied upon State case, of the that the to the theory Land and Cattle Matador of the property was the to change cow so as on the been altered Co., brand had and that the on her at found the State was contended by to what was original The theory pasture. appellant’s she was discovered cow; that he raised the was, testimony, his defendant supported Matador and that the cow
she was his property, cattle were found in the time the He claimed at Land and Cattle Co. there, and a con- were during when the officers and others his pasture, matter, himself and Eobertson with reference to versation between shows Eobertson testified: “I was his. The record that the cow was Cannon, Conner, and Ed we were com- Lisenby; close to walking along cows, there, cow and a heifer there were two older kept and along ing us, were west of us. asked They off to left. I shying away Tes, I said, he see here in mine.’ his; if these all are sight were cow, left, said, that heifer off to the are those your I ‘That old going cow, heifers, old ‘That is not an are both says, they He cattle?’ ” The mine, cattle were then in a are both them both.’ put examined, and under State’s and theory pen from the brand to original brand showed to have been what changed brand, was on them. claimed was and there was never he the brand on brand on originally, any put them, he and it was his placed the animals what brand. This except facts, out this voluminous is sufficient statement record think, to in review the issues to be discussed. necessary bring with reference of prop- explanation appellant. erty recently given by The charge that set out Wheeler v. as given Texas Grim. practically has been this court Bep., approved by suffi- being The objections when that issue is in the case. urged cient to this charge were taken and We are this properly verified. should been given. this case. The consequent explanation ques- issue, tion here was directly at whether it was the defendant Land Matador and Cattle Co. He claimed it direct; such was his statement time when it,of he sustain which introduced evidence. So case presents issue, not of explanation but of right and title to the prop- ' Bepokts. 84 Texas Ckiminal [.February, If it was his erty. there could have 'been no theft. If it was not his and belonged to the Matador Co., Land and Cattle then the case was one or fraudulent altering the brand. Mr. Branch his Ann. C., P. on p. collates a number of cases. great The condensed statement of that author is as follows: “It error on the subject reasonable when defendant made no explanation of his or when possession, as to the challenged property he stated that he knew about nothing it or claimed as his own.” ii; The authorities are collated Branch, Mr. and can be found without burdening opinion with them. The issue so far listing as the animal concerned, it, on this was that phase defendant’s or it was the of the Matador Land and Cattle Co. Appellant was entitled to a the issue of his charge directly submitting ownership title to the unencumbered with the property, explanation, and true, if believed to be or there was a reasonable doubt about should was an acquit. of fact given assumption first, adverse to defendant. It is based upon theory, that the property *3 someone, himself, was stolen either defendant or someone else by by by from whom he received it. denying absolutely, asserted The court was assuming ownership. against appellant the had and he had an given been stolen of his explanation when ho had denied the claimed and had ownership no of his correct to given explanation possession. a assume the law the case. The appellant charging fact court adversely in error in charge. another think There is is well taken. proposition The court of another animal admitted evidence found at the same time as the one in and with the brand claimed the State to by have been the introduction of Objection urged testimony, altered. the effect of limiting testimony of the court such and also to We are this evidence opinion intent of the defendant. The issue in been admitted. intent should not have If of the evidence. took the animal appellant from the viewpoint case it, brand on changed found his there which was n couldbe n If to his intent. was his there could no no be The intent, because it was his intent property. taking if it to another If it his party. fraudulent clearly intent, and there was to aid be no fraudulent nothing by there could evidence as to the other animal. He claimed introduction both animals and did brand upon change have put Land and Cattle Co. were both taken They of the Matador view, same same authority, under the the same right, owner, the intent the animals taking he was not If ownership. them was clear and did not authorize evi- on the brand and changing n introduced to show intent. The court be crime to dence of extraneous could consider this ex- only in his instructed the. defendant. intent We be- bearing traneous matter as The 1919.1 error. the brand the second taking altering this was
lieve fraudulent did could show intent on his cow, other, because if he took the other under circum- part taking State, there was no of intent and noth- stances claimed the' or authorized. to elucidate and no additional required ing there could no fraudulent If it was his intent. indicated the will be reversed
For reasons cause judgment remanded.
Reversed and remanded. MORROW, Judge. I think the evidence showing of an- other animal with brand under the circumstances changed, developed, was admissible. have been uncalled stolen seems to for. See Dobbs and other cases Texas Grim. mentioned Bep., opinion of I concur in On this the reversal ground
case. Judge
PBENDEBGAST, is clear to me that (dissenting).—It as to the testimony- the brand on the other cow or change heifer was admissible. with Morrow on that agree Judge question.
I do not associates on agree my question. The case cited not in by Judge Morrow clearly point reading therein In will demonstrate. that case it was stated the de- expressly fendant therein at no time made of his In any explanation possession.
this case the reverse is true. defendant herein when first of the two head of cattle claimed and he explained them, and the brands had not been changed, were his held error did property. not assume either cattle, cow, or directly indirectly stolen but left that *4 issue to be found and should so by jury, required they believe— did not in from take that any way question jury. was charge have been In and should proper given. entirely separate paragraph if the court believed from the evidence jury they told that expressly cattle, or was the owner of or if raised said had a appellant they reasonable thereof to him. The was in charge doubt acquit every way proper guarded appellant’s rights. should be affirmed.
This case dissent its reversal.
ON REHEARING.
February DAVIDSON, motion for a rehearing by error to on reason- cites the effect that it is State cases to many not when an issue in able account of stolen that recently property re- reasons was why judgment one of basic the case. This was law, error, understand the decisions and the always as we versed. It is [February, Reports. Criminal Texas .508 court to an issue adverse defendant when facts, that issue is issue made whether this he assuming not by of reasonable other adverse when account, or proposition, facts do not or raise such issue. Authorities would not suggest necessary be to sustain that proposition. here was did not an account of his question appellant that give stolen In
possession order to authorize a recently property. on that it must shown that property thereafter in recently was found appellant an ac- possession and,gave which, count of that believe, if the possession jury should disconnected him with and showed that his taking was not possession fraudulent. does when That arise the issue is title vel non Smith See 44 Texas Crim. property. 81; Rep., Roy State, 34 concerned, Texas Crim. fa'r 301. So as that the writer has reviewed the more record, former and is convinced of fact firmly that recent stolen possession property case, title, not an issue but one of in and which was in contested with favor of defendant that severely strong Jackson, cattle were his and not from whom he is that issue of stolen stolen. The possession recently property predi someone, cated the fact that was stolen always upon property and the accused was thereafter found of it. The recently of it is that the was stolen. basic before the theory issue was that this was the of defendant and not Jack son. The State contended it Jackson’s had stolen it. claimed it was his had be property, which Jackson longed company represented. n There in the which was not so is another exception specifically noticed in the former and that is that the opinion, issue made was not the facts. Exception for not issue was informing reserved to the charge for that reason and also and the State’s witnesses had never seen is made. Jackson complaint recall, and the claim set only cattle so far as could up on the cattle had the brand been some judgment fact that their from the brand to Matador Land belonging time altered the past an alteration of the and in- The State claimed Cattle Co. when, 'but proposition, support troduced shown, it had been a while done, remote, quite is not except how of the property, found appellant prior made also connec- The claim is fact had been changed. it in made the facts. All issue of recent tion that the recent after the cattle’s must be hold that the authorities *5 recent. shown to be This was not disappearance. to not was exception charge further that is contended that ownership; to notice the question
sufficient this court to require charge. reserved to the thereto specifically exception v. The Ice State. 1910.1 is sufficient
writer is of that the to opinion charge present question, in is that the court error The second to court’s exception charge in the law reference recent of stolen possession prop- to charging in does not reason this case raise the issue that the erty, proof no recent there that defendant’s being proof possession, further recent of the if stolen. to the excepted cattle the al- defendant’s because showed that charge proof recent, animal not and the court instead of leged in recent law embodied paragraph (which posses- of stolen should have sion), found the not sufficient a conviction to authorize defendant’s State relied alone on possession, The fourth recent after to of the were acquit. ground follows: That the court erred in is as its exception no in case M. because this J. there proof Land or the Matador Co.
person, that witness Jackson Cattle in or that ever had she was ever them, says stolen from and defendant that the evidence raises the issue to establish the sufficiency delicti, and the proof corpus said fails submit issue to the which should court’s are of these were sufficient exceptions done. We opinion present issue discussed the opinion. is, record as it
Taking given, the facts intro- duced, are of these are sufficient exceptions require to review decide them. motion for will be overruled. rehearing
Overruled. Ice v. Jim Decided February
No. 4857. 1919. Diligence. 1.—Seduction—Continuance—Want seduction, Where, application the second for a continuance securing diligence justified a the absent witnesses and want showed true, testimony was no error there was probably conclusion overruling application for continuance. Intercourse. —Same—Evidence—Other Acts Sexual seduction, admitting no of other Upon trial of there was error prosecutrix her statement to corroborate the of sexual intercourse acts marriage date fixed promise a renewed they were coincident with time, rule that came intercourse the settled acts within as these within a short character of case Following Brad- provable. are subsequent acts of and other cases. 198 S. W. shaw v.
3. —Same—Evidence—Corroboration. seduction, admitting error there was no Upon trial marriage. preparation made dresses prosecutrix and that she others