George Robertson v. The State, 1 Tex. Ct. App. 311

Winkles, J. The appellant was indicted, tried, and convicted in the district court of Bastrop county on a charge of unlawfully and fraudulently taking from the possession of G. H.

Jenkins, without his knowledge or consent, and with intent to convert to his own use, “ a certain yellow and white pieded beef steer.” A motion was made to quash the indictment, “because the indictment attempts to charge the defendant with the commission of a felony, and fails to do so in that the property alleged to be stolen is not alleged to be of the species of cattle.” The motion to quash was overruled by the court, and the defendant excepted. The ruling of the court on the motion to quash is made a ground in a motion for new trial, which was also overruled.

The defendant was then tried on a plea of not guilty, found guilty by a jury, and his punishment assessed at confinement in the state penitentiary for a period of four years, and judgment entered accordingly. An appeal is taken on the following assignment of errors: 1st. The court erred in its charge to the jury. 2d. The court erred in refusing the charges asked by the defendant; and, 3d. The court erred in overruling the motion for new trial.

Considering the several alleged errors in the order of presentation, as to the 1st we need do no more than say we have examined the charges as given by the court, and, when taken in connection with those given at the request of the defendant, we are of opinion that the law of the case, as made by the evidence, was correctly given to the jury, and as favorably for the accused as the testimony warranted. .The 2d error assigned, refusing to give certain charges asked by the defendant, is not maintainable.

Those portions of the several charges refused which were at all applicable to the case are embraced substantially in the •charges given. The remaining portions were inapplicable, and could only have tended to confuse the minds of the jury. As to the remaining error assigned—to wit, the overruling of the defendant’s motion for new trial—we are of opinion this ruling of the court below was proper. The question of the guilt or innocence of the accused was fairly submitted to the jury.

The evidence on the part of the prosecution was sufficient to fix on the defendant the wrongful taking of the animal, under" circumstances amounting to theft under the law, and sustains the verdict of guilty found against him by the jury. There is nothing in the record to justify us in concluding that the jury exceeded the bounds of a proper discretion in fixing the punishment as they have done, it being within the limits prescribed by the statute. The prosecuting witness proved ownership in himself, not in Burleson. Nor do we think the court erred in overruling the motion of defendant to quash the indictment.

The indictment charges theft of “a beef steer.” The objection urged against it is that it fails to allege that the animal was of the “ species of cattle.” Bepeated decisions of the supreme court show that in charging theft of cattle it is only necessary to charge the species—as cow, steer, ox, and the like—without the use of the generic term, “ cattle.” This was settled law in Texas before the organization of this court, and, as an investigation of the authorities will abundantly show, correctly settled. See The State v. Lange, 22 Texas, 591; The State v. Eisenheimer, decided Austin, 1875; Parchman v.

The State, decided Tyler, 1875; Hubotter v. The State, 32 Texas, 483. In Parchman v. The State reference is made to the following : Bishop on Stat. Crimes, sec. 440, refers to The State v. Pearce, Peck, 66 ; The State v. Hambleton, 20 Mo. 452 ; The State v. Abbot, 20 Vt. 537; Tyler v. The State, 6 Humph. 285; Whart. Am. Cr. Law, 4th ed., sec. 377, and references' there made. The indictment in this case, in using the word “beef steer,” is sufficient, without the statutory word “ cattle,” and the motion to quash was properly overruled.

We have carefully examined all the questions presented in the record and by counsel in argument, and have not found anything which would warrant us in reversing the judgment of the district court of Bastrop county rendered in this case. Affirmed.