E. Y. Thompson v. The State, 26 Tex. Ct. App. 466

Hurt, Judge. This is a conviction for theft of a horse, the-alleged property of Pink Coats. Over objections of defendant, the State introduced in evidence the certificate of the record of the brand of W. P.

Coats;, the objections being, first, that it does not appear from the certificate that the brand was recorded in Taylor county; second, it does not appear from the certificate in what county the brand was recorded; third, because it does not appear from the evidence of Coats that at present and for four years next preceding the present time, he resided in the county of Callahan, and it- does not appear that the brand was recorded in Callahan, county, where the owner resides, nor in Coleman county, the-place of the offense; fourth, because it appears from the testimony of Coats that the brand mentioned in the certificate is-not his brand at the present time.

First. It does not appear with reasonable certainty that the-brand was recorded in Taylor county. The certificate is as follows: Certificate of Registration of Marks and Brands: The State of Texas, ) County of Taylor. f I, David J. Red, Clerk of the Count Court in and for said County, do hereby certify that the foregoing is a true copy of the Record of the mark and brand of W. P. Coats (horse brand). Opinion delivered November 28, 1888. Witness my hand and seal of office this 6th day of March, 1888. David J. Red, Clerk of the County Court, Taylor County. By J. H. Beckens, Deputy. (Byrd v.

The State, ante, 374.) When the horse was taken, Coats, the owner, lived and had lived in Callahan county for four years; he owned thirty or forty head of horses, which ran in Callahan and Taylor counties, and at times ran in the northwest portion of Coleman •county. When the brand was recorded, Coats lived in Taylor county. (Rev. Stats., art. 4556.) It is urged by counsel for appellant that the law with reference to recording brands does not apply to horses, and that therefore the certificate was not competent evidence.

Marks and brands would be admissible in evidence to prove ownership, whether recorded or not, if not prohibited by statute. Our statute rejects brands unless recorded. (Rev. Stats., art. 4561.) The statute did not 'make the marks and brands evidence of ownership. They were so intrinsically, but, unless recorded, the statute expressly declares that the brand shall not be recognized as any evidence of ownership of cattle, horses or mules ■upon which the same may be placed. We have carefully examined the facts of this case, and are impressed with the opinion that they do not sustain the verdict.

This is not a case of conflict in the evidence so much as a difference of opinion as to whether the brand on the animal was PC or PG. If PC the horse was the property of Coats, the prosecutor. The witnesses in number are about equal and are ■equally positive, with pretty much the same means of knowledge. There was no concealment, the taking being openly, under claim of property, and the brand being such as might reasonably be taken for PC or PG. Under these circumstances we are not willing to sanction the verdict. The judgment is reversed and the cause remanded for another •trial. Reversed an d remanded.