Ireland, Associate Justice. The defendant was in-dieted in the District Court of Freestone county for the theft of a cow and yearling. The property alleged to have been stolen is described as estrays whose owner is unknown. The indictment contains two counts, one for the theft of the property, and one for killing the animals. There were exceptions to the indictment, based on the fact that it contained a count charging a felony and one charging a misdemeanor. The State abandoned the latter count, and went to trial on the first.

The defendant was convicted and sentenced to two years’ confinement in the penitentiary. Among other matters the appellant assigns for error that “ the verdict is contrary to the law and the evidence,” and that the court erred in its charge to the jury,pointing out the charge complained of. Among other matters the appellant urges as a reason why the indictment is defective the fact that it does not charge that the animals alleged to have been stolen came within the meaning of estrays.

Without deciding whether that allegation would havebeen necessary, had the State elected to try on the last count, we do not think it necessary when the party is charged with stealing an estray. It is sufficient, if the indictment is good, as in other cases of theft. We do not believe that the proof in this case will sustain the conviction. The defendant may have been guilty of a violation of the estray laws, but the verdict for theft cannot be sustained. (Kay v. The State, 40 Tex. R., 29.) The court below made the fact that there had been a man in the neighborhood at one time, called Jack Sea or D. J.

Sea, and that he could write Ms name, and that the purported bill of sale of defendant being signed by A. J. Sea with his mark, too controlling an element in the case. While the fact was probably admissible in proof in that case, it was a circumstance of very little importance, and the admitted fact in proof by the State in respect to the signature was not inconsistent with the truth of the facts proven by the defendant. The court below erred in refusing a new trial, and the judgment is reversed and the cause remanded. Reversed and remanded.