Debbs v. State

• Decision Date: 01 January 1875
• Citation: 43 Tex. 650
• Parties: MATT. DEBBS v. THE STATE.
• Court: Texas Supreme Court

43 Tex. 650

MATT. DEBBS

v.THE STATE.

Supreme Court of Texas.

1875.

APPEAL from Parker. Tried below before the Hon. A. J. Hood.

Article 4655, Paschal's Dig., requires every person in this State who has cattle to have an ear-mark and brand, different from the ear-mark and brand of his neighbors, which he shall record, &c.

Article 4655 is as follows: “Cattle shall be marked with the ear-mark, or branded with the brand of the owner on or before they are twelve months old; hogs, sheep, and goats shall be marked with the ear-mark of the owner on or before they are six months old.”

The indictment charged Debbs with the theft of John R. Witt's yearling. Witt and Debbs were neighbors. Witt owned three yearlings, one of which was a heifer, and quite gentle, though unmarked and unbranded. This heifer, when not in the cowpen or pasture of the owner, was in the range between the houses of Debbs and Witt. About the 27th November, 1874, Debbs, the defendant, shot the heifer between sundown and dark, on the range where she fed, and took the flesh and skin of the animal to his home. The skin he hung up on a rail, and while putting the meat away in his home remarked to one Patton, who lived with him, that he had killed a fat young heifer about two years old, unmarked and unbranded, and he thought he had as good a right to her as any one.

The jury returned a verdict of guilty, and assessed the punishment of defendant at two years' imprisonment in the penitentiary.

Jones & Henry, for appellant.

A. J. Peeler, Assistant Attorney General, for the State.

IRELAND, ASSOCIATE JUSTICE.

During the trial of this cause the district attorney asked a witness for the State, Kirksey, after Kirksey had stated that defendant had some young cattle, “how did he (defendant) get them? (cattle.)” The defendant objected to the witness answering the question. His objection was overruled, aud the witness answered:

“The defendant, Debbs, has some young cattle, but had no stock cattle;” “that he, defendant, conscripted those he, defendant, had, and that he, witness, understood conscription to mean the taking of cattle that did not belong to the one taking; or, in other words, stealing.”

This answer had been given over the objection of defendant, and after it had been detailed he moved the court to exclude it from the jury, which the court refused to do, to all of which defendant excepted.

That this ruling of the court was erroneous will hardly be disputed. (3 Greenl. Ev., § 25.)

...