The State v. Edward Fletcher, 35 Tex. 740

Ogden, J. The defendant was indicted for taking up and using an estray bay mare pony, the corporal personal property of E. Herron. An exception to the indictment was filed, on the ground that the indictment charged defendant with taking up and using an estray whose owner was known to the grand jury, and that an animal could not be an estray whose owner was known. The court sustained the exception and quashed the indictment. The ruling of the court was clearly erroneous, and the judgment must be reversed.

Because the owner of the animal had been discovered, and was known when the indictment was found, is no proof that the animal was not an estray when taken up. And in the case of The State v. Apel, 14 Texas, 431, this court decided that an animal might be an estray, and at the same time the owner be known, provided the animal was a great distance ont of its accustomed range. The judgment is reversed and the case remanded. Reversed and remanded.