No. 1127. | Tex. Crim. App. | Nov 13, 1895
Appellant in this case was convicted of the theft of a cow, and his punishment assessed at two years in the penitentiary. This case was before us at the Dallas term, 1895, (29 S. W Rep., 1084), and the judgment was reversed, because of the manner in which a witness was impeached, the predicate for the impeachment not having been first laid. The first bill of exceptions was reserved to the introduction in evidence of a certified copy of the record of a mark and brand on the left side and thigh, recorded in the name of Word Mendell, and subsequently transferred on said record from Word Mendell to the McCulloch County Land and Cattle Company. The first objection is, that there was no bill of sale introduced in evidence from Word Mendell to the McCulloch County Land and Cattle Company. This is not necessary in order to admit the record. Proof that the company had purchased from Word Mendell could be made by parol. The indictment alleged that one Roberts was the owner of the cow in question. The proof showed that he was in exclusive possession, management and control of cattle in that brand, and that the cattle belonged to the McCulloch County Land and Cattle Company. It was not necessary to have charged that the company owned the cattle. If Roberts was in fact (and there is no doubt of it) in exclusive possession, management and control of the cow in question, in law, so far as this prosecution was concerned, he was the owner. The law does not require the record to state whether the brand was on horses or cattle, or other property. This *198 record did show that this brand was placed on the left side and left thigh, which is in conformity with the statute. The State proved by R.E. Word, a sale of the cattle bearing that mark and brand, by Word Mendell to the McCulloch County Land and Cattle Company. It was objected that this could not be done by parol testimony. The objection is not well taken. Requested instructions upon this subject were properly refused. If Roberts had exclusive possession, management and control of the cow, the prosecution would not be defeated by proof that the McCulloch County Land and Cattle Company owned the cow. Proof that Roberts was in exclusive possession, management and control of the cow was proof that he owned the cow, within the meaning of this indictment. Although the company may have been the actual owner, Roberts would be the special owner. These propositions were submitted to the jury by the charge of the court, to which counsel for appellant objected. The objection is not well taken. The charge is correct.
Bird and Blackwell were important witnesses for the appellant. Evidence was introduced tending to show that they had been charged with theft. The court instructed the jury that this evidence could only be considered for the purpose of impeaching the credibility of these witnesses, and for no other purpose. To this charge the appellant objected, because, he says, it was a charge upon the weight of the testimony. The charge was demanded by the testimony, was correct in every particular, and was not upon the weight of the evidence. The evidence raises no doubt as to whether the appellant was the original taker or receiver after its being taken. The question as to whether he was a principal in the taking is not raised in this case, but that fact is placed beyond question. There was evidence tending to show that the appellant had purchased the cow in question from one Kuykendall. This was his defense, and the issue in the case was whether this was the Kuykendall cow or a cow belonging to Roberts. Now, the court charged the jury as follows: "If you believe from the evidence that the defendant took the one head of cattle charged in the indictment, under a real claim of right or title, he is not guilty, and you will acquit; or, if it is not shown by the evidence beyond a reasonable doubt, that the one head of cattle taken by the defendant was the property of W.M. Roberts, or in his actual control, care and management, at the time of the taking, if any, you will acquit the defendant." Under the facts of this case this charge was correct, and sufficiently full to present fairly the defense relied upon by appellant. The hide of the cow in question was introduced in evidence, and exhibited to the jury. To this the appellant objected. There was no error in this. Hart v. State, 15 Tex.Crim. App., 202; Bryant v. State, 18 Tex.Crim. App., 107; Levy v. State, 28 Tex.Crim. App., 203; Jackson v. State, 28 Tex.Crim. App., 370; Bell v. State, 32 Tex.Crim. Rep.. It was necessary for the State to prove that the cow belonged to Roberts. To do this, the proof must show that she was branded on the left side with a ???, and on the left thigh with a circle. The appellant claimed that the cow had the ???(UJ) brand on the left side, with a straight bar *199 on the left thigh. The proof is clear that the cow had the ??? brand on her left side, and not the ???. The hide did not contain a whole circle, but a part of a circle. It is now contended that if the circle had been extended from the terminal points of the brand still remaining on the hide, it would have been too large to have been put on the animal at that place. In answer to this, it is sufficient to say, that the evidence shows that the hide had been stretched at that place, and what might have indicated a much smaller circle originally, in consequence thereof might, by stretching, have been extended into even a straight line. So this is no indication that the circle would have been the size as contended for by appellant. We are of the opinion that the evidence is sufficient to sustain the conviction. The judgment is affirmed.
Affirmed.