148 S.W. 789 | Tex. Crim. App. | 1912
Lead Opinion
Appellant was indicted, tried and convicted of the offense of theft of cattle, and sentenced to two years confinement in the penitentiary.
1. The question presented by bill of exceptions No. 1 presents the most serious question in the case. Appellant was charged with the theft of one head of cattle, the property of A.D. Middleton. A.D. Middleton testified that his father was named David Middleton; that he was dead, having died in 1877; that witness was his only heir. That his mother also died in 1877, and neither made any will, and he, being the only child, inherited all the property belonging to his father and mother at the date of their death. He testified to finding a beef in the Ford pasture, leased to appellant. That the beef was originally branded (J.H. 9) and originally marked , calling it a swallow fork in one ear, and crop in the other. That when he found the animal in the Ford pasture the brand and mark had been changed, and the brand then was as follows: (J.H. U — U inverted) and the mark , it being a swallow fork in one and crop and underbit in the other ear. The State then offered in evidence the brand of David Middleton, being recorded in brand book one of Liberty County, Texas, the date at the top of the page being January 27, 1875, and on next line below said date being a date December 20, 1875, and then follows ditto marks under this date down to and including Brand No. 5, there being no ditto marks after No. 5, the brand of David Middleton being No. 16, on the line of which David Middleton's brand appeared being no date of registration, unless the date preceding should govern. When the record of the brand of David Middleton was offered in evidence, being the the defendant objected on the following grounds:
"1st. Because that brand being the brand of David Middleton is not evidence of ownership in Archie Middleton of the brand.
2d. Because in the same record of brand book on page 2, No. 26, shows the record of another and a different brand being the andiron brand with forks above it as the recorded brand of David Middleton, *51 and because the recorded brand as offered by the State fails to show where on the animal the brand is to be placed — it fails to designate what part of the animal the brand is to be placed upon.
3d. That the introduction of the recorded brand of one party will not prove ownership in another, and because the said David Middleton had more than one brand recorded."
In approving said bill the court qualifies it thus: "Allowed with the qualification that the was the only brand that the State put in evidence, and Middleton, the alleged owner, testified he never used any other brand. The grounds of objection are correctly stated in the bill, but I am not willing to endorse everything contained in the bill as to what the testimony was. The statement of facts will show the evidence, and the exhibit `A' attached to this bill was not a part of the testimony in the case." The appellant accepts this bill as qualified, and we must accept same as correct.
The first objection is that the record shows it to be the brand of David Middleton and not the brand A.D. Middleton, and is not evidence of ownership in him. If the brand was all the evidence the objection might be tenable, but the court declines to prove the statement of evidence in the bill and refers to the statement of facts, and by reference to that instrument we find that David Middleton and his wife died in 1877, and A.D. Middleton was their only child and heir, and inherited the brand, and he has constantly used the brand from the date of the death of his father to the date of the trial in this case. Under this state of facts there was no error in overruling the first objection.
The second objection is, that the brand book shows that David Middleton also had a different brand on record, being the andiron brand with forks above it. The judge in approving the bill declines to approve it as to the facts stated in the bill, and says "Exhibit A" was not a part of the testimony in the case. The statement of facts shows that this brand was not introduced in evidence as stated by the judge, but offered only in connection with the bill of exceptions; it did not go before the jury to be considered by it, but if it had been so introduced, the Supreme Court has held in McCline v. Sheeks,
The next objection is that the record fails to show upon what part of the animal the brand was placed. This necessitates a *52 construction of several statutes. In 1848 the Legislature enacted a law (which is now article 4921 of the Revised Statutes) that "Every person who has cattle shall have an ear mark and brand differing from the ear mark and brand of his neighbors, which ear mark and brand shall be recorded by the clerk of the county where such cattle shall be; and no person shall use more than one brand, but may record his brand in as many counties as he may think necessary." This has been the law from 1848 until the present date, except in those counties which by later Acts (the Acts of 1874 and 1876) provided different conditions. In 1874 the Legislature passed an Act (House Bill No. 16) entitled "An Act to encourage stock raising and for the protection of stock raisers," being chapter 38, of the Acts of the Fourteenth Legislature, and in section 20 of that Act it was provided that the place on the animal on which the brand should be placed should be designated, but Liberty County, the county in which this brand was recorded was exempted from the operation of that Act, in section 44, thus leaving the law of 1848 in force in Liberty County. It is true that the same Legislature later in the session in chapter 108 undertook to place Liberty County under the provision of that Act by enacting the following: "Section 1. Be it enacted by the Legislature of the State of Texas, That the provisions of House Bill No. 16, `an Act to encourage stock raising and for the protection of stock raisers,' approved March 23, 1874, be and the same is hereby extended to the counties of Liberty, Orange, Chambers and Jefferson." By reference to those Acts it will be seen that it was section 44 of House Bill No. 16 that this later Act undertook to amend, and by the later Act, the first Act nor the section thereof sought to be amended was not reenacted, but it was sought to amend a certain section by reference to the number and title of the bill. This was prohibited by section 18 of article 12 of the Constitution of 1869, which was then in force, said section of the Constitution reading as follows: "No law shall be revised or amended by reference to its title; but in such cases, the Act revised, or section amended shall be reenacted and published at length." It is thus seen that chapter 108, which undertook to place Liberty County under the provisions of chapter 38 was unconstitutional and invalid, for it did not reenact the entire law nor the section which it sought to amend, but simply referred to the Act by its title, thus leaving Liberty County under the provisions of the law of 1848, and the brand being recorded in 1875, was properly and legally recorded under the Act of 1848.
In the brief it is insisted that one section of the Act of 1848 (being now article 4929 of the Revised Statutes) made it the duty of the county clerk to note the date on which the brand is recorded. In this case the date does not appear on the line on which the brand is recorded, but by the bill of exceptions it is shown, that the date preceding this line is December 20, 1875, and after this lapse of time it will be presumed that this date is the date of record of all brands in the *53 book until the next date occurs in the book. If this were not true, the rights of the owner of the brand could not be affected by the failure of the clerk to place the date there when the owner had complied with what the law required him to do as set forth in article 4921, where no other person was asserting claim to this brand by a record thereof. Sufficient data was placed on the record to inform the public and place them on notice that David Middleton was the owner of the stock of cattle in that brand. The statutes require that the clerk shall place on a deed the date it is filed for record, and record and index the deed. If the clerk in recording the deed should fail to record the date of its registration, no one would seriously contend that this would render invalid the record of the deed, or that the record thereof was inadmissible in evidence. In one instance, the law required the deed to be placed of record to give all notice; in the other it required the brand to be recorded for the same purpose, and if the clerk had failed to place the date of record, it would not have rendered the record inadmissible in evidence. We have carefully reviewed all the laws passed in regard to stock raising since 1874, and find that Liberty County was placed under the provisions of chapter 165 of the Acts of the Fifteenth Legislature, approved August 23, 1876, yet it was exempted from the operation of that law by chapter 130 of the Acts of the Regular Session of the Sixteenth Legislature, approved April 22, 1879, and has been exempt from the provisions of that law since said date, thus in 1879 coming again under the general law of 1848, which law is now and was at the date of this trial in force in Liberty County, and by the provisions of that law (now article 4930 of Rev. Stat.) brands recorded by the officers named in the law of 1848 are admissible in testimony as evidence of ownership, and the court did not err in admitting the testimony, nor in refusing the special charge instructing the jury not to consider the record of this brand as any evidence of ownership. Appellant cites many cases decided by this court, holding that brands of record which do not show the part of the animal on which the brand is placed is inadmissible in testimony as evidence of ownership. That is a correct rule of law in those counties embraced in the provisions of the Acts of 1874 and 1876, because it is so provided in those Acts, but in counties which are not embraced, but by the terms thereof specifically exempted from the provisions of the Acts of 1874 and 1876, such rule does not prevail, but the rule as announced in the Act of 1848 prevails, because that is the law in force in those counties. Section 23 of article 16 of the Constitution of 1876, provides the Legislature may pass laws for the regulation of live stock and the protection of stock raisers in the stock raising portion of the state, and exempt from the operation of such laws other portions, sections or counties. The Legislature in its wisdom having seen proper to exempt Liberty County from the operation of the stock laws as passed in 1874 and 1876, *54 we are not authorized to seek to enforce any portion of said laws in said county.
2. Neither did the court err in permitting A.D. Middleton to testify that his father and mother were dead, and had died in 1877, and he was the sole child and heir, and inherited all the property, in which was included this brand and all cattle owned by his father, and that he had kept this up since that date, and it was the only brand he used.
3. These are all the bills of exception reserved to admitting and excluding testimony, and we can not consider the grounds in the motion for a new trial in regard to other testimony, nor can we consider the ground complaining of the refusal of the court to grant a continuance, there being no bill reserved. (White's Ann. Proc. Sections 645, 851 and 1123.)
4. The first three special instructions requested were peremptory instructions and the court did not err in refusing to give them, and we have passed on the question raised by special charge No. 4 (see article 4930, Rev. Stat.). The only other special charge in the record is one requesting the court to instruct the jury that if they believed that the animal was found in the Ford pasture, and they further believed that Floyd Dugat and others had an equal right with appellant to use the pasture, the fact that the animal was found in the pasture should not be considered as tending to establish the possession of the alleged stolen animal in appellant. The animal when found was found branded in appellant's brand, he owning the brand, and the testimony of the State showed that Middleton's brand had been recently changed to . The testimony further showed that appellant kept his cattle in this Ford pasture, and that he had been in and around this pasture two or three days, just a short time before the animal was found in the pasture. This being a case of circumstantial evidence, the circumstance that the the animal was found in a pasture leased by him, was admissible to be considered with other circumstances in the case, and the court did not err in refusing the special charge. Buckley's Crim. Digest, Title One, subdiv. 7; Noftsinger v. State, 7 Texas Crim. App., 301; Cooper v. State,
5. A verdict which reads: "We the jury find the defendant guilty as charged in the indictment," and assess his punishment at two years in the penitentiary, is not unintelligible or vague. McGee v. State, 39 Tex.Crim. Rep., and section 840 Branch's Crim. Law.
6. Appellant complains that the court in his charge fails to instruct the jury that an animal running on the range would be in the owner's possession, and to take it from the range would be taking it from the possession of the owner. The alleged owner, Mr. Middleton, testified that his cattle runs in Chambers, Jefferson and Liberty Counties, but the principal part of them ranged in Chambers County. The Ford pasture, in which the animal was found, is in the lower edge *55
of Liberty County, and within a half mile of the Chambers County line, and testifies he had cattle running near there, and on direct examination he testified he and the sheriff and others found two head of his cattle in the Ford pasture, the brand on both having been changed from to and the marks had been changed; that these changes had been recently made. Article 235 of the Code of Criminal Procedure provides that where property is stolen in one county and carried off to another by the offender, he may be prosecuted either in the county where he took the property, or in any county through or into which he may have carried the same. The pasture in which the animal was found being in Liberty County, and the prosecution being had in Liberty County, it would be immaterial whether the animal was taken in Liberty, Jefferson or Chambers County. And it is the law of this State that animals on their accustomed range are in the possession of the owner, and one who takes an animal from the range takes it from the owner's possession. (Cameron v. State,
7. In the testimony for the State, it was shown that two head of cattle claimed by Middleton were found in the Ford pasture at the same time, July 12th, while this indictment charged the theft of only one head of cattle. The defendant introduced in evidence another indictment against him for the theft of one head of cattle, and the court in his charge limited the jury in this case to passing on the question whether or not he took the black beef steer testified to by the witnesses. In this there was no error. The court instructed the jury: "You are further charged that the testimony of the witnesses as to other cattle found in the pasture under the defendant's control, to wit: the Ford pasture — in the mark and brand the same as the witnesses state was the mark and brand of the black beef in question (if you find and believe there was such other cattle in such mark and brand) was offered in evidence upon the question of intent only, and the defendant can not be convicted for the taking of *56 such cattle (if he did take such cattle) no matter what the facts may be as to such other cattle."
Appellant insists that this was upon the weight of the testimony in that it instructed the jury that the Ford pasture was in appellant's control. The testimony, and all the testimony, shows this to be the fact. The owner of the pasture testified he leased it to appellant, and no other person, and the testimony of appellant only shows that he permitted others to place cattle in the pasture, but they were in there by his permission and he had the right to permit or exclude consequently it was in his control, and it has been frequently held by this court that for the trial court to assume a fact that is undisputed in the evidence is not error. (Byrd v. State, 53 Tex.Crim. Rep.; Romero v. State, 56 Tex.Crim. Rep.; Sebastian v. State
8. The only other criticism of the charge is that the court erred in failing to limit the purposes for which the testimony with reference to defendant having been indicted in other cases could be used by the jury. The evidence shows that defendant on direct examination had testified that he was indicted in Jefferson County and he introduced the indictment in the other case in Liberty County, thus being the person who first brought these other offenses in evidence. The question of whether evidence of extraneous crimes should be limited in the court's charge is one that has been frequently discussed by this court, and we frankly state that its holding has not always been uniform. In the case of Carroll v. State, 58 S.W. Rep., 340, Presiding Judge Davidson held in an opinion concurred in by all the court:
"Appellant was convicted of arson, and his punishment assessed at confinement in the penitentiary for a term of five years. Appellant while confined in jail set fire to and sought to burn the jail. During the trial it was proved that appellant was incarcerated under a charge of burglary. The only ground of the motion for new trial is a criticism of the charge for failing to limit the effect of this evidence to the impeachment of appellant's credibility as a witness. It is only necessary to limit this character of evidence when there might be danger of its being used injuriously to defendant, or for the purpose of convicting him of an offense for which he was not on trial. The case is a very clear one, fully proved, and the punishment the lowest authorized by statute. We see no reversible error in this matter Wilson v. State, 37 Tex.Crim. Rep.,
In fact, after a thorough discussion of this question the rule finally adopted seems to be tersely stated in Branch's Crim. Law, section 873, where it is held, "if the testimony can only be used to impeach a witness it is not necessary to charge on the subject at all," citing many authorities. In this case the court limited a conviction to a question of whether appellant "took one head of cattle — the black beef steer testified to by witnesses," and the record being in this condition, this question does not present reversible error.
The judgment is affirmed.
Affirmed.
Addendum
In this case the appellant has filed a motion for rehearing, the first ground of which is, the court erred in holding that the trial court did not err in admitting in evidence the record of the brand of David Middleton, (1) because the record of said brand failed to state on what part of the animal the brand was placed; (2) because the brand recorded showed that David Middleton was using and claiming more than one brand. We will discuss the ground first, alleging that he erred in admitting the brand because it was not stated in the record on what part of the animal the brand was placed. We must first remember that under the general rules of evidence, that an animal was branded in a given brand and that a named person was the owner of that brand, is admissible in evidence unless prohibited by statute. It does not take a statute to make brands and marks on animals admissible in evidence — they are so by virtue of the rules governing evidence, and it has been held that cattle branded with the brand of the prosecuting witness is some evidence of his ownership. Underhill on Crim. Ev., 297; State v. Wolfley,
We do not think that the Act of April 28, 1874, wherein it was attempted to place Liberty County under the provisions of the Act of March 3d can by any construction be termed a repealing statute, and, therefore, deem it unnecessary to discuss the authorities cited by appellant showing that the Legislature has the right to repeal without republishing the entire section or law, for that is certainly the law. This was not undertaken to repeal the law or any portion thereof where it was in force, but to put the law in force where it had not theretofore been in force, and in consequence would be an amendment to the law.
In appellant's motion for a new trial he calls our attention to other Acts of the Fourteenth Legislature, claiming that these put Liberty County under the operation of the Act of March, 1874, and this is probably true. Without discussing these Acts, it is clear that the Acts of the Sixteenth Legislature, in chapter 30, passed April 22, 1879, exempted Liberty County from the operation of the law, and that it has been exempt ever since, and was exempt at the date of this trial. It is also manifest that if the brand was not properly recorded in 1875, that by the Act of August 26, 1876, chapter CLXV, sections 22 and 23, the record was rendered valid, for by it, it was provided:
"Section 22. No person owning and claiming stock shall, in original marking and branding animals, make use of more than one mark and brand; provided, that any person may own and possess animals in many marks and brands, the same having been by him acquired by purchase, and bills of sale in writing, properly acknowledged from the previous owner or owners, or his or their legally constituted agent, shall be sufficient evidence of such purchase; but the increase of such *59 animals, or of any animals counter branded by such person from other stocks of cattle owned by him, and all animals so counter branded, shall be branded or counter branded by one and the same brand; and when marked by such person, shall be marked in one and the same mark.
"Section 23. The clerk of the County Court in each county shalltranscribe the list of all recorded marks and brands in hiscounty, and revise the same. Such revised list shall be written in a well bound book, kept for that purpose only, and shall be arranged as follows, viz.: All brands of the letter class shall be placed in alphabetical order, following which shall be the numeral, character and device brands, in the order of the date of their registration. Opposite each brand shall be stated the marks corresponding to said brand, the name of the owner of the brand, his place of residence; if the same be sold, the name of the person to whom sold and his residence, the date of registration of the brands and marks, or particulars relating thereto. Before each brand shall be placed its number, commencing at one for the first brand on the revised list; and the name of the owner of each brand shall be indexed, reference being had in such index to the list number of the brand or brands of such owner; and all new marks and brands placed on record shall be immediately recorded and indexed in said book, which shall at all times be open to the inspection of all persons; provided, that the provisions of this section shall apply only to counties in which the work of transcribing the records has not already been done in accordance with law."
There is no provision that the "part of the animal on which brand is placed" shall be transcribed, and thirty-four years after that time, in the absence of any proof to the contrary, we must presume that the clerk complied with this law; and the reason why it appears that David Middleton had more than one brand appear of record is because of purchases made by him. And the fact that more than one brand does appear is evidence of nothing more than he had perhaps purchased certain marks and brands. The evidence conclusively shows that in originally marking and branding he used only the brand, and has done so continually since that date. And if this record introduced is the transcribed record provided for by this article of the statute, it would properly be of record, and being legally of record, when Liberty County was exempted from the operation of what was known as the inspection laws of 1874 and 1876, by Act of the Legislature in 1879, the provisions of those laws requiring that brand record should show on what part of the animal the brand was placed, to be admissible in testimony as evidence of ownership, was and is no longer in force in that county, and the evidence in this case was admissible, as the theft was alleged to have occurred and the trial had about thirty years after Liberty County was exempted from the operation of those laws. Stock laws, like our prohibitory laws, are only in force in those counties where it is so provided by law.
As to the second clause, that David Middleton had more than one *60 brand of record, it need not be discussed, as section 22 of the Act herein above copied authorized it when one purchased cattle; the only limitation was that in originally marking and branding a person should not use more than one brand. A.D. Middleton testified that his father had purchased several brands, but that he never did use but one in originally branding cattle and that was the brand. There is no evidence in this case that David Middleton or A.D. Middleton ever used more than one brand in originally branding their cattle; and, therefore, we do not deem it necessary to discuss those cases where more than one brand was shown to have been used in originally branding cattle.
The other questions raised in appellant's motion for rehearing were so thoroughly discussed in the original opinion we do not deem it necessary to do so again, but only add where a person is on trial and proof that he has been or is charged with other offenses is admitted, it is the better practice to instruct the jury as to the purposes for which it was admitted, but if it is not done, then the question arises: was the testimony such that could have been used for any other purpose than as it might affect the credibility of the witness, and if not, a failure to so charge will not present reversible error. In this case the court limited the consideration of the jury alone to whether or not the defendant was guilty of the theft of the black beef steer described by the witnesses, and under such circumstances the failure to limit the testimony would not present reversible error. Moseley v. State, 36 Tex.Crim. Rep., and Carroll v. State, 58 S.W. Rep., 340.
The motion for rehearing is overruled.
Overruled.