Ed Crowell v. The State, 24 Tex. Ct. App. 404

Willson, Judge. A fraudulent taking of property without the consent of the owner, with the intent to deprive the owner of the value of the property, and appropriate it to the use and benefit of the person taking it, constitutes the offense of theft. Such a taking of the property completes the offense. The factum probandum, therefore, is such taking. It is the main fact in issue. Where the main fact in issue is not directly attested by any eye witness, but is proven as a matter of inference from other facts in evidence, the case rests wholly upon circumstantial evidence. (l Greenl.

Ev., sees. 13-13d.; Burrell’s Cir. Ev., 4 et seq.; Eckert v. The State, 9 Texas Ct. App., 105.) In this case the evidence shows that, before the alleged stolen animal was killed by the defendant, and before he is shown to have had any possession thereof, or connection therewith, it had been taken from its accustomed range, carried into the field of one Moss, and there tied to a tree. It is evident, therefore, that the theft of the animal by some person had been completed at the time defendant was first seen to have possession of it. But no witness testified to having seen the taking of the animal from its range.

The fact of such taking is only proved as a matter of inference from other facts in evidence. It is only proved circumstantially, and the case is therefore one resting wholly upon circumstantial evidence. This being the character of the case, it was material error to omit to charge the jury upon the rules relating to circumstantial evidence. We do not think the statements made by the defendant in regard to the animal killed by him can be regarded as confessions proving that he took the animal from its range, or, in other words, proving that he committed the original theft of the animal.

They may have the effect to connect him with the animal after it had been tied to the tree in Moss’s field, and thus connect him inferentially with the original taking, but they do not afford direct evidence of the original taking, and make this a case not wholly dependent upon circumstantial evidence. There is no evidence proving the corpus delicti of the alleged theft, except the testimony of an accomplice. He alone saw the animal that was killed and appropriated by the defendant. He alone saw the brand upon said animal. As to this portion of his testimony there is' no corroborating evidence.

It is only from the testimony of this accomplice that we are informed that the animal killed by the defendant was one of Carrington’s cattle, and not the defendant’s own property. Can such testimony support a conviction? We think not. Our view of the statute relating to accomplice testimony is that where the corpus delicti of the offense is proved alone by accomplice testimony, such testimony must be corroborated by other evidence tending to establish a commission of the offense, and the defendant’s connection with the commission of the same.

It will not suffice to corroborate such testimony to the extent only of connecting the defendant with the commission of

an act alleged to be an offense. It must be proved that the act committed was an offense, and when this proof is made by an accomplice his testimony must be corroborated. In the case before us the offense alleged was the theft of an animal, the property of one Carrington. It was just as essential for the prosecution to prove that the animal taken was the property of Carrington as that it was taken by the defendant. There was ample evidence to prove, and, in fact, it was not denied by the defendant that he took an animal and appropriated it.

But the ownership of the animal taken was a vital issue upon which depended the guilt or the innocence of this defendant. There was not a particle of evidence establishing the allegation that the animal killed by the defendant was the property of Carrington, except the uncorroborated testimony of the accomplice wit-« ness. We hold, therefore, that the evidence is insufficient to support the conviction. (Code Crim. Proc., art. 741; Coleman v. The State, 44 Texas, 109; Davis v. The State, 2 Texas Ct. App., 588.) We are of the opinion that the charge of the court in the particulars excepted to was erroneous.

That portion of the charge relating to accomplice testimony which applies the law to the facts of the case, is too broad in its scope. It should have required the corroboration to be as to facts tending to show the commission of an offense, and the defendant’s connection with such commission. The charge was also erroneous in instructing that it was the hilling of the animal that constituted the offense. It was the taking of the animal while on its accustomed range, and not the killing of it after it had been taken, that constituted the theft of the animal.

We furthermore think that the court should have submitted the question to the jury as to whether the witness Moss was an accomplice by proper instruction, such as was requested by counsel for defendant. With regard to the record of brands, while admissible in evidence although recorded after the commission of the alleged offense, they are not sufficient evidence to prove ownership. It further appears, with reference' to the brand in this case, that it was a “road brand,” and not a range brand. A “road brand” is provided for by

article 4G32 of the Revised Statutes, and is required to be placed upon cattle before being removed from the county where the same are gathered to market beyond the limits of this State, and said brand is required to be recorded in the county from which the animals are to be driven, and before their removal from such county.

This statute is not operative in certain named counties, the county in which this prosecution is conducted being exempted now from its operation (act March 31, 1887, 34); but it does not appear to have been so exempted at the time of the commission of the alleged offense. (Act April 12, 1883, p. 79.) It seems to us that the record of the “road brand” of Carrington, made after his cattle were driven from the county where gathered, and after the commission of the alleged offense, was unauthorized by law, and that said record was not only insufficient, but was inadmissible evidence to prove ownership.

Opinion delivered December 10, 1887. Because of the errors discussed, the judgment is reversed and the cause is remanded. Reversed and remanded.