| Tex. | Jul 1, 1875
During the trial of this cause the district attorney asked a witness for the State, Kirksey, after Kirksey had stated that defendant had some young cattle, “how did he (defendant) get them? (cattle.)”
“The defendant, Debbs, has some young cattle, but had no stock cattle; ” “ that he, defendant, conscripted those he, defendant, had, and that he, witness, understood conscription to mean the taking of cattle that did not belong to the one taking; or, in other words, stealing.”
This answer had been given over the objection of defendant, and after it had been detailed he moved the court to exclude it from the jury, which the court refused to do, to all of which defendant excepted.
That this ruling of the court was erroneous will hardly be disputed. (3 Greenl. Ev., § 25.)
The defendant seems to have been laboring under the impression that he had a right to kill the animal because it was over a year old and unbranded.
It is true that the law does require all persons to brand their cattle before they are one year old; but there is no penalty attached to a failure to so brand. A failure to perform that duty will generally result in difficulties about ownership, but the animal does not thereby cease to belong to the original owner, nor does it .authorize or justify any one in trespassing thereon.
It does appear that the defendant has been guilty of a trespass upon his neighbor’s property, for which he is liable to punishment, and liable for damages in a civil action ; but the case does not warrant a conviction for theft. He took the animal in the day time, in presence of his family and others, under the apparent belief that the owner had forfeited his rights by not branding it. The defendant’s counsel drew the attention of the court below to this view of the case in charges asked, and which were refused by the court. (3 Greenl. Ev., § 157.)
Eor the errors pointed out, the judgment is reversed and the cause remanded.
Reversed and remanded.