Groom v. State

23 Tex. Ct. App. 82 | Tex. App. | 1887

Willson, Judge.

On a previous day of our present term we affirmed the judgment of conviction in this case. At the time the case was considered and determined by the court we did not have the benefit of a brief or argument in behalf of the defendant. Upon this motion for a rehearing, counsel for defendant has submitted an able and full brief of the case, and at the request of the court has also argued orally the questions relied upon by him for a reversal of the judgment. In the light of the brief and argument of counsel, we have carefully and thoroughly reconsidered the record, and we are convinced that we were in error in affirming the judgment, because, in our opinion, the conviction is not supported by the evidence. We do not think the evidence establishes the allegation as to the ownership of the alleged stolen cattle.

It is alleged in the indictment that Thomas T. McGee owned said cattle. It is shown by the evidence that, at the time of the alleged theft, said McGee managed the cattle in that section in the PO brand. He testified that he had been manager of the PO ranch and cattle since February, 1885. He did not claim to be the general, but only the special owner of the cattle in the PO brand. By the witness Black, the State proved that the alleged stolen cattle were branded PO on the left hip, and he thought that they were also branded on the left side with a lateral or lazy P—but he was not certain that they were branded with said lateral or lazy P. There was no other evidence as to the brand upon the alleged stolen cattle. McGee testified nothing as to the ownership of the particular cattle alleged to have been stolen. No other witness except Black testified to any fact tending to identify said cattle as the property of McGee. For the purpose of establishing the allegation of ownership, the State read in evidence the record of a mark and brand recorded in the name of R. Moody & Co., date of record September, 1880. The mark was an under bit and overbit in each ear; the brand PO on the left hip, and i-y on the left side. Black testified that the alleged stolen cattle, he thought, but was not sure, were in this mark and brand. If the said cattle were in fact in this recorded mark and brand, the evidence would sufficiently prove the ownership of the cattle to have been in R. Moody & Co. at the date of the alleged offense. But the testimony of the witness Black as to the mark and brand of the said cattle is very indefinite and unsatisfactory, even if he was a credible witness, which the evidence clearly shows he was not.

But even should it be conceded that the alleged stolen cattle were in the recorded mark and brand of R. Moody & Co., who were the general owners of cattle in that mark and brand at the date of the alleged theft, this does not prove ownership of the cattle in McGee. It was not proved that McGee owned, managed or controlled the cattle in said mark and brand. He testified that he managed cattle in the PO brand, but it is not shown that the PO brand is the same as the recorded brand of R. Moody & Co., to wit: PO on the left hip and hj on the left side. It might be inferred, perhaps, that the two brands are identically the same, and that the witnesses, in speaking of the PO brand, meant the said recorded brand of R. Moody & Co. But the liberty of the citizen can not be taken away by a mere inference of a material fact, especially when such fact, did it exist, could easily be proved. It was not for the jury to assume, in the absence of proof of the fact, that the recorded brand of R. Moody & Co. was identical with the PO brand which McGee testified he managed. The PO brand may be an entirely different one from the said recorded brand, and, if so, .it was not proved that the alleged stolen cattle were in the PO brand, for Black, the only witness who testified as to the brand of said cattle, said that he thought they were not only branded PO but were branded hj on the side. Besides, if the PO brand is not identical with the said recorded brand, it was not recorded, and was not evidence of ownership.

It seems from the evidence that after the date of the alleged theft R Moody & Co. sold and transferred their cattle and brand to the Moody & Andrews Land and Cattle Company, who had said brand again recorded in the name of said company. This record was read in evidence over defendant’s objections, and the correctness of this ruling of the court is questioned by proper bill of exception. We can not perceive any legitimate bearing that this record could have upon any issue in the case. At the time of. the alleged theft the Moody & Andrews Land and Cattle Company certainly did not own the cattle in said brand, although they did own the same subsequently. We think this record should have been excluded because irrelevant. Furthermore it was not sufficient evidence of itself to prove ownership in said company, not having been recorded in the name of said company at the time of the alleged theft. (Priesmuth v. The State, 1 Texas Ct. App., 480; Spinks v. The State, 8 Texas Ct. App., 125; Harvey v. The State, 21 Texas Ct. App., 178.)

It is alleged in the indictment, and the proof shows that the venue of the offense was Hemphill county, an unorganized county attached to Wheeler county for judicial purposes. In impaneling the jury one I. B. Wood, a citizen of said Hemphill county, was presented to serve as a juror in the case. Defendant objected to said Wood as a juror, because he was not a citizen of Wheeler county, etc. The court overruled the objection, and, the defendant having exhausted his challenges, said Wood served as a juror in the trial of the cause, and this proceeding is presented by bill of exception for our revision. We are of the opinion that Wood was a qualified juror, notwithstanding he did not actually reside, and could not legally vote in said Wheeler county. Hemphill county, having been by law attached to Wheeler county for judicial purposes, was, for such purposes, a part of Wheeler county, and for such purposes its citizens must be regarded as citizens, voters and householders of said Wheeler county. For all judicial purposes, the two counties are to be regarded as but one, and for such purposes Wheeler county embraced and exercised complete jurisdiction over all the territory within the bounday lines of both counties. It can not be questioned that the impaneling and service of a jury come within the meaning of the words “judicial purposes.” We hold, therefore, that said Wood was a qualified juror to serve in the trial of this cause.

Opinion delivered February 12, 1887.

Because, in our opinion, the evidence is insufficient to support the conviction, in that it does not prove the allegation as to the ownership of the alleged stolen cattle, the motion for rehearing is granted, the judgment is reversed and the cause is remanded.

Reversed and remanded.