Frank Atterberry alias Frank Anderson v. The State, 19 Tex. Ct. App. 401

White, Presiding' Judge. It was alleged in the indictment that the cattle were the personal property of one J. C. Thomas, and that they were taken from the possession of one T. W. Sims. These cattle had been running around the premises of Sims for some time, and he concluded he would advertise them with a view of estraying them, in case the owner did not come and claim them. Defendant and one Beam saw the advertisement, went to Sims’s place, took the cattle from his pasture where he had placed them, and drove them to where Sims was at work in his field.

They told Sims they had seen his advertisement of their cattle, that they were their property, and they had come to get them. They proposed to sell to him and, having made him an extremely liberal offer, he accepted the terms and subsequently sent part of the purchase money, as instructed by them, to Beam’s address at Denton. Sims sold the cattle to a party in Fort Worth, and afterwards becoming satisfied they belonged to Thomas, repurchased ' them from Thomas’s agent. J. C. Thomas lived and had a cattle ranche in Throckmorton county, in which ranche and the cattle his brother was a joint owner. That J. 0.

Thomas had the exclusive care, management, custody and control of the cattle. Their non-consent to the taking was proven both by Sims and J. C. Thomas, who each appeared and testified at the trial. When Thomas stated that he and his brother had a written agreement in relation to their respective rights and interests in the cattle, defendant insisted that the writing was the best evidence of such rights and interests, and moved the court to exclude all that had previously been said by J. 0. Thomas without objection, about his management and control of the cattle. This the court refused to do.

There was no error in this. True, the witness had stated that the property was joint property. Still the written instrument could only have shown the details of the partnership or ownership, and such details were immaterial to the defendants or the issue to be tried. It might have been the best evidence in a matter at issue between the joint owners, but as to third parties, under the law and upon an issue such as was here presented, wre cannot see how it could be considered better evidence of ownership than the declaration of one of the parties to the instrument.

It is provided by statute that “ where property is owned in common or jointly by two or more persons, the ownership may be alleged to be in all or either of them.” (Code Crim. Proc., art. 426.) So far as the other Thomas was concerned, the State was not bound to allege or prove his want of consent (Barrett v. The State, 18 Texas Ct. App., 64; Bailey v. The State, id., 426; Frazier v: The State, id., 434; Phillips v. The State, 17 Texas Ct. App., 169; Terry v. The State, 15 Texas Ct. App., 66), and the character of his interest in the stock was wholly immaterial to defendants or to any issue in the case. J. C.

Thomas testified, notwithstanding the joint ownership, that he had the exclusive care, custody and control of the property, and, if the jury believed him, that was all that was requisite or necessary on that subject to establish his ownership as alleged. Certificates of the clerk of the county court of Throckmorton county as to the marks and brands of the Thomases was objected to by defendant because said mark and brand was not recorded in Denton county.

It is true that the statute says that the mark and brand of the owner of cattle shall be recorded by the clerk of the county court where such cattle shall be (Rev. Stats., art. 4556), but this, as we understand it, relates entirely to the county in which he intends his cattle to' range. True, he may record his mark and brand in as many counties as he may think necessary. (7d.) This, however, does not require him to make a record in every county in the State, or in every county into which his cattle may stray. He shall record in the county of his range, and wherever else he may think necessary.

When his cattle stray into other counties he can use the record evidence of the mark and brand of the county of the range, in the county where they are found, without recording his mark and brand in said county. The certificate from the county clerk’s office where he is required to record is evidence wherever else his cattle may be found. We are of opinion the certificate of the county clerk of Throckmorton county was sufficient, and that it was admissible as evidence in the case.

Again, it is objected that the court erred in ..charging, the. jury that “ if the taking, though originally lawful, was obtained by any false pretext or with intent to appropriate the property to the use and benefit of the person taking, and the same is so appropriated, the offense of theft is complete,” because, it is said, such charge is inapplicable to the facts in the case. We are of opinion the charge was directly called for by the facts, and that the general charge would have been deficient without such instruction. It was alleged and proven that the animals were taken from Sims’s possession.

It was further proven that Sims had consented to the taking, and had recognized defendant’s right to take, and had purchased the cattle from defendants after they had taken them. But the evidence further showed that Sims’s consent was obtained by the fraudulent pretext of defendant and Beam that they were the owners of the cattle.

In theft “ the taking must be wrongful, so that if the property came into the possession of the person accused of theft by lawful means, the subsequent appropriation of it is not theft; but, if the taking, though originally lawful, was obtained by any false pretext or with any intent to deprive the owner of the value thereof and appropriate the property to the use and benefit of the person taking, and the same is so appropriated, the offense of theft is complete.” (Penal Code, art. 727.) Under the facts of the case it was necessary the jury should be properly informed and instructed as to this principle of the law.

In this case the indictment did not charge a theft by means of a false pretext; still it is the settled law of this State that under an ordinary indictment for theft, a conviction can be had on proof that-the taking, though with the owner’s consent, was obtained by false pretext and with intent to deprive the owner of the value of the property and appropriate it to the use and benefit of the taker. (Dow v. The State, 12 Texas Ct. App., 343; Morrison v. The State, 17 Texas Ct. App., 34.) This case is different from Hardeman v. The State, 12 Texas Ct.

App., 207, in that in this case defendant and Beam had taken possession of the cattle and driven them from the pasture before they sold them to Sims. Defendant, so far as we can judge from the record, has had a fair trial, and three years’ imprisonment in the penitentiary cannot be said to be excessive punishment under the facts of the case. ' The judgment is affirmed. Affirmed. [Opinion delivered November 18, 1885.]