Alexander v. State

• Decision Date: 29 October 1887
• Citation: 5 S.W. 840
• Parties: ALEXANDER v. STATE.
• Court: Texas Court of Appeals

Page 840

5 S.W. 840

ALEXANDER v. STATE.

Court of Appeals of Texas.

October 29, 1887.

Appeal from district court, Brazoria county; W. H. BURKHART, Judge.

The opinion indicates the only questions involved on this appeal. The penalty assessed was a term of three years in the penitentiary.

G. W. & F. J. Duff, for appellant. Asst. Atty. Gen. Davidson, for the State.

WILLSON, J.

It is alleged in the indictment that the animal stolen was the property of E. N. Wilson, and that it was taken from the possession of said E. N. Wilson. The evidence shows that the animal, at the time it was missed from its accustomed range, was under the care, management, and control of one Fernandez, who had been hired by the owner, E. N. Wilson, to mark, brand, and look after the stock of cattle running on and about said Wilson's ranch. Said Fernandez had no authority to sell or dispose of any of said cattle, but had the care, management, and control of them in all other respects. These facts constituted Fernandez the possessor of the cattle, and he, and not Wilson, was therefore in possession of the animal in question at the time it was stolen, said animal being one of the stock of cattle under his care, management, and control. Hence there is a material variance between the allegation and the proof of the possession of said animal, because of which the conviction must be set aside. Bailey v. State, 18 Tex. App. 426; Frazier v. State, Id. 434; Bailey v. State, 20 Tex. App. 68; Briggs v. State, Id. 106; Littleton v. State, Id. 168; Hall v. State, 22 Tex. App. 632, 3 S. W. Rep. 338; Tinney v. State, ante, 831, (this term.)

We find no error in the charge of the court, nor do we think that the court erred in refusing the special charges requested. One of said special charges was embraced, substantially, in the general charge, and the other, with reference to the effect of evidence of a recorded brand, was properly refused, because, upon the weight of evidence, while a recorded brand is admissible in evidence to prove ownership, the statute does not make it prima facie proof of ownership, nor attach to it any peculiar weight, or even expressly declare it to be admissible evidence. It is like any other evidence of ownership, and, having been admitted in evidence, is for the consideration of the jury, like any other evidence, and the court is not required to, and ordinarily should not, call attention to it in the charge.

Because of the variance between the allegation and the...