Frank Myers v. The State, 24 Tex. Ct. App. 334

Willson, Judge. To establish the allegation of the ownership of the alleged stolen animal, the State relies solely upon the brand upon said animal, undertaking to show that said brand was the recorded brand of the alleged owner. A certified copy of the record of the brand of said alleged owner was read in evidence by the State, and, as shown by said record, said brand is thus: 3 placed upon the left side of the animal upon which it is used. There is no evidence that this brand was found upon "the alleged stolen animal.

All the testimony shows that the brand found upon said animal was either a perpendicular s or an inclined s'. It will be seen at a glance that the recorded brand and the brand found upon the alleged stolen animal are essentially different.

While a recorded brand is sufficient evidence of ownership, such brand and the brand found upon the animal must correspond, and be identically the same, and the brand upon the animal must even be upon the particular part of the body designated ip. the record, or it will not afford sufficient evidence of ownership, unless the discrepancy is explained satisfactorily by other evidence. (Harwell v. The State, 22 Texas Ct. App., 251; Priesmuth v. The State, 1 Texas Ct.

App., 480.) We are of the opinion that the evidence does not prove the allegation of ownership, and is therefore insufficient to sustain the conviction. As the case must be remanded for another trial, we will notice and determine some other questions presented in the record, and which may arise on another trial. It was error, we think, to reject the proposed testimony of the witness Carter in regard to the brand BEK, which he testified he placed upon a certain calf.

If said calf and the alleged stolen animal were the same it would be competent and material for the defendant to show that said brand was not placed upon said animal for and as the brand of the alleged owner, but for another person, whose brand it was claimed to be. Such testimony would tend to weaken the State’s testimony respecting said brand by accounting for its presence upon the animal upon another hypothesis than that the animal belonged to the alleged owner, he having testified that he owned some cattle in that brand.

While said brand, not being recorded, was incompetent evidence to prove ownership, still it was evidence to identify the animal, and it was the defendant’s right, if he could do so, to explain away and destroy whatever probative force it might have against him. There was evidence tending to show that the defendant killed the alleged stolen animal for beef, and that he did so by the direction of one Grounds, whose hired hand he was at the time.

If he took said animal by direction of said employer, and for the use and benefit of said employer, believing at the time that his said- employer owned or had a right to appropriate the animal, he would not be guilty of theft, because the essential ingredient of theft—that is, a fraudulent intent—would be wanting. (Willson’s Texas Crim. Laws, sec. 1295.) There being some evidence to support this theory, the court should have submitted the matter to the jury under proper instructions. (Willson’s Texas Crim. Laws, sec. 1306.) Opinion delivered November 23, 1887.

We have examined other supposed errors complained of, but none of them are, in our judgment, substantial. . The only errors committed are, in our opinion, those we have mentioned. Because of said errors, and because the conviction is not sustained by the evidence with reference to the allegation of ownership,, the judgment is reversed and the cause is remanded. Reversed and remanded.