Bob. Coombes v. The State, 17 Tex. Ct. App. 258

Willson, Judqe. I. It was not error to permit the State to prove-the general good reputation for truth and veracity of its witness G. W. Parsons., The credibility of this witness had been attacked ■ and put in issue by the defendant, by showing that he was then under indictment for illegally branding horses, and that the defendant wms a witness against him in that prosecution, and that his feelings tow'ard the defendant w-ere unfriendly. This, we think, authorized the State to prove that his general reputation for truth and veracity and integrity was good. (Dixon v. The State, 15 Texas Ct. App., 271.) II.

It wTas not error, under the facts of this case, for the court to charge the jury that “ if the defendant killed the cow without the consent of the owner thereof, with the intent to deprive the owrner of the value thereof, and appropriate it to the use and benefit of the defendant, then this would constitute theft of said cow.” In another portion of the charge the jury were fully instructed that, to constitute theft, the taking of the property must have been with a fraudulent intent; so that, construing the charge as a whole, the above paragraph is not materially erroneous because it omits to tell the jury that the killing of the cow was with a “fraudulent intent ” on the part of the defendant.

But counsel for defendant object to this charge upon another ground, and that is that the mere act of killing the cow did not constitute a taking, but that there must have been an actual taking of the cow, and that, under the evidence in this case, the cow, though killed by the defendant, was not taken.

The proof wras, by two witnesses for the State, that they heard a gun fire, and went in the direction of the sound, and in fifteen or twenty minutes after they heard the report of the gun they came in view of the defendant in the woods, xvho was sitting upon his horse with a gun before him, and when he saw-them he rode away in a rapid gait. They went to where he was standing when they first saw him, and fifteen feet from that place they discovered the cow lying upon the ground, not quite dead. The cow had been shot behind the shoulder.

Does this evidence show a taking of the cow within the meaning of our statute defining the offense of theft? Upon this question there is a conflict between two decisions rendered by our supreme court. In Hall v. The State, 41 Texas, 287, the court says: “We think that, under our statute, where the circumstances show the intent to steal, the offense of theft may be complete with the killing.

A case may be imagined where the animal is killed with the intent requisite to constitute theft, and yet it might not come into the possession or under the control of the thief, but might at the time be and remain in the possession of the owner. It is not necessary to hold the theft complete in such cases in order to support the charge in this case. The charge must be taken with reference to the facts of the case. The hogs were killed in the woods, out of the immediate custody of the owner.

By the act of killing, under such circumstances, the defendant may fairly be held to have had the hogs under his control and in his possession. Manual possession, actual handling, does not appear to be essential in case of animals, even in common law larceny.” (Citing 2 Bish. Or. Law, § 813, and note 7.) ' The case of Martin v.

The State, 44 Texas, 172, seems to us to be in direct conflict with the case from which we have just quoted, and if the doctrine announced in this latter, case be correct, then there can be no question but that the charge of the court, that the killing of the animal was a taking of it, is erroneous. The two decisions being irreconcilable, and both of them being directly in point with reference to the question in this case, we must determine which of them, in our opinion, announces the correct doctrine.

Considering the fact that to constitute theft under our statute, asportation of the property is not necessary, we are clearly of the opinion that the decision in Hall’s case, supra, is correct, and that the decision in Martin’s case, supra, is wrong, and we shall therefore adhere to the former and overrule the latter. We adopted this same view of this question in a case decided at the last Austin term.

That was for the theft of hogs, and the proof showed that the defendant never had manual possession of the animals,— that they were running in their usual range and were gentle; that he called them up around him, and pointed them out to another person as his hogs, and sold said person the hogs, and said person thereafter took actual possession of them.

Presiding Judge White, who delivered the opinion of the court (which opinion we have not before us, it not having yet been published), discussed the question as to what constituted a taking of property, at length reviewing the cases and authorities bearing thereon, and the court held that in that case there was a taking of the hogs within the meaning of our statute. (Madison v. The State, 16 Texas Ct. App., 435.) III. After a careful examination of the statement of facts, the only evidence we find which proves or tends to prove that the cow killed was the property of Gr. W.

Parsons, as alleged in the indictment, is that she was in his cattle range, and was branded in his brand. This brand was unrecorded. Parsons did not see or know the cow, but saw the hide, and from his brand upon the hide concluded, and so testified, that she was his cow. It was shown that he had a large number of cattle in this brand, and that he had sold a number of them before this cow was killed. It is well settled that an unrecorded brand is not evidence of ownership,— is not even presumptive evidence of ownership.

It may be used in evidence to aid in establishing the identity of an animal, but not to prove the ownership of the animal. (Maddox v. The State, 12 Texas Ct. App., 429; Fisher v. The State, 4 Texas Ct. App., 181; Hutto v. The State, 7 Texas Ct. App., 44.) In this case the unrecorded brand was used to prove ownership, and not to identify the cow. Upon it the State mainly relied to establish the ownership of the cow as alleged in the indictment. Without it, there was no proof of such ownership.

We must, therefore, hold that the State failed to prove the allegation of ownership, and that the conviction is not supported by the evidence. IY. Although the cow may have been the separate property of Parsons’s wife, he had the sole management of the same during the marriage (Rev. Stats., art. 2851), and prima faeie the wife could not legally consent to the taking of the cow without being joined in such consent by her husband. We therefore think it was not required that the State should prove the want of consent of the wife to the taking.

Such consent might be a defense, but the want of it is not necessarily required to be shown by the prosecution. Because the ownership of the cow was not proven, the judgment is reversed and the cause is remanded. Reversed and remanded. [Opinion delivered December 6, 1884.]