Coward v. State
| Decision Date | 28 January 1888 |
| Citation | 7 S.W. 332 |
| Parties | COWARD v. STATE. |
| Court | Texas Court of Appeals |
Appeal from district court, Edwards county; J. H. CLARK, Special Judge.
Asst. Atty. Gen. Davidson, for appellee.
Appellant was convicted upon an indictment charging him with the theft "of one head of neat cattle," the property of William Kelso, Sr. It is shown by the evidence that two animals belonging to the alleged owner were found with their ear-marks changed into the ear-mark of defendant, and the brand upon one of the animals was also obliterated, and the brand of defendant placed upon it. One was a cow, the other was a yearling, and the calf of said cow. When the cow was first seen after her ear-mark was changed, she was in a pen, and defendant and another party were present. When she was claimed as the property of Kelso, defendant asserted no claim to her, but helped to turn her out of the pen; nor did he make any explanation as to the fact that the ear-mark had been changed into his ear-mark. The yearling was found afterwards upon the prairie, with its mother, and with its ear-marks and brand both changed into the mark and brand of defendant. It occurs to us that the indictment would have made a case less difficult had it been brought for altering or defacing a mark and brand, as provided in article 760 of the Penal Code. We see no good reason, however, why a fraudulent taking of an animal may not be evidenced by an illegal marking and branding for the purpose of permanently appropriating it, since asportation is not necessary to constitute theft, (Pen. Code, art. 726,) and since it is manifest that marking or branding cannot be accomplished without an actual manual possession of the animal by the party engaged in it.
There are two questions which present themselves on the record, growing out of the charge of the court with reference to the facts. In the first place, the evidence shows the theft of two animals, while the indictment only charges the theft of one. Contemporaneous acts or crimes are admissible as evidence to show motive, intent, identity, etc., and it was admissible to prove, as was done, that the marks upon both animals were defendant's, and further to establish by the facts stated that they must have been changed at or about the same time. This tended to show motive, intent, and identity of the party committing the crime. But the question is, which of the two animals stolen was the one named in the indictment, and for which the...
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