Adolphus Cameron v. The State, 44 Tex. 652

Reeves, Associate Justice. The question of the guilt or the innocence of the appellant was fairly submitted in the charge of the court to the jury. If the property had been found in the possession of the appellant, his declaration at the time explanatory of his possession would have been admissible in evidence. But it was not shown from the facts contained in the bill of exceptions that appellant proposed to prove, otherwise than by his own declaration, that he was in possession of the steer when he said to the witnesses that he had bought it.

The predicate was not laid for the admission of his declarations as to the character of his possession. Be did not offer to prove by the witnesses that he had ever been in possession of the animal or had exercised acts of ownership over it as facts within their knowledge, but the proposition was to prove that appellant had made. such statements two or three months before the time of the alleged theft of the steer. Though there was no error in excluding proof of the alleged facts, yet if the proof had gone to the jury it is not perceived that it could have been of any benefit to the defendant.

It had been shown by other evidence that the defendant claimed the steer by purchase from Adams, and said that he had a bill of sale and could produce it. This he failed to do, either at that time or on the trial. His declarations about possession and the exercise of acts of ownership, made to the witnesses two or three months before the time of the alleged theft of the steer, could have been of no avail as a defense to the charge against him, in view of his denial at a subsequent time that he had sold the animal to Dawson, when spoken to about it by Daniels.

He at first denied having done so, and then remarked, in the language of the witness, “that there was no use in lying about it,” and admitted that he had put the steer in Dawson’s herd, and offered to pay the owner for it, and afterwards did pay him. Dawson proves that he bought a steer from the defendant, describing it as a dun or brown steer. Other witnesses describe Daniels’ steer as being brown or black. The word “dun,” as referring to color, partakes of brown and black. (Webster’s Dic.) In other respects the identity of the animal as Daniels’ property was sufficiently shown.

If it could admit of a doubt, the doubt was entirely removed by the admissions of the defendant, as shown in the evidence of Jesse Daniels. It was further shown that Jesse Daniels was the owner of the animal, and that it was in his possession, though in the “range,” where it had run since a calf, The temporary absence of the owner from the State, leaving his stock in its accustomed range, was not

an act of abandonment, as seems to be contended for appellant. The defendant did not pay or offer to pay the owner for the property until after he was indicted, having first denied the sale to Dawson, and after-wards admitting that he had put the steer in Dawson’s herd, and, as an excuse for his conduct, claimed under a purchase and bill of sale from Adams. It does not appear that any effort was made to procure the attendance of Adams as a witness on the trial, nor was the hill of sale produced or accounted for.

We think the evidence fully authorized the jury to return a verdict of guilty against the defendant, as was done. We find no objection to the charge of the court. The case did not call for any charge upon an open taking of property under claim of right. Finding no error in the charge of the court, the judgment is affirmed. Affirmed .