Harwell v. State

• Decision Date: 13 November 1886
• Citation: 2 S.W. 606
• Parties: HARWELL <I>v.</I> STATE.<SMALL><SUP>1</SUP></SMALL>
• Court: Texas Court of Appeals

2 S.W. 606

HARWELLv.

STATE.¹

Court of Appeals of Texas.

November 13, 1886.

Appeal from district court, Falls county.

The conviction in this case was for receiving a stolen yearling, (cattle,) the property of J. W. Morris, knowing it to be stolen property. The penalty assessed against the appellant was a term of two years in the penitentiary.

The opinion sufficiently discloses the case.

Oltorff & Harlan and Alexander, Winter & Dickenson, for appellant. Asst. Atty. Gen. Burts, for the State.

WILLSON, J.

There are two counts in the indictment, the first charging theft, and the second receiving stolen property knowing the same to have been stolen. Defendant was found guilty upon the second count.

1. It seems from the evidence that defendant received the yearling described in the indictment from one W. N. Johnson. At the same time he received this yearling, he, together with one Gaither, received from said Johnson two other yearlings. It is quite clear, from the evidence that these three yearlings were stolen property at the time the defendant and Gaither came into possession of them. Each of the yearlings, when found in the possession of defendant and Gaither, had been rebranded; that is, new and different brands had been placed upon them, covering and changing the old brands. Defendant and Gaither sold these yearlings at the same time to one La Prelle, in whose possession they were found by the owners, and reclaimed.

Defendant objected to all the testimony in relation to the two yearlings not mentioned in the indictment, he being charged with respect to only one of said animals. The objections were overruled, and he excepted. We are of the opinion that said testimony was properly admitted, for the purpose of proving a fraudulent intent on the part of defendant with respect to the yearling named in the indictment, and knowledge on his part at the time he received said yearling that it was stolen property. Holmes v. State, 20 Tex. App. 509; Kelley v. State, 18 Tex. App. 262. The jury were instructed by the court that this testimony could not be considered by them as any evidence that defendant, or said W. N. Johnson, took said yearling from the possession of the owner thereof. This instruction, under the facts of this case, was a proper and sufficient limitation and explanation of the purpose and legal bearing of said testimony.

2. The fact that W. N. Johnson, prior to the time it is claimed he sold the yearlings to defendant and Gaither, claimed the same as his property, and bargained them to another party, would tend to show that defendant's subsequent connection with the yearlings was in good faith, believing said yearlings to be the property of said Johnson. However remote or weak such testimony may be, it would nevertheless disclose a circumstance favorable to the defendant, and he was entitled to have it considered by the jury. It was not hearsay evidence, within the rule excluding that character of evidence. It was evidence of an independent fact; of acts of a third party with reference to the identical property in question, and was original and primary. We think the court erred in rejecting it.

3. It was proved that the animal in question was branded on the side. Over the objections of the defendant, the prosecution was permitted to read in evidence the record of the brand of the alleged owner of the said animal, which record designated the left hip as the part of the animal upon which said brand should be placed. It is insisted by counsel for defendant that said record was not evidence to prove ownership of the animal in question in the owner of said brand, because said animal was not branded on the left hip, but on a different part of its body from that designated in the record, to-wit, on the left side.

Article 783 of the Penal Code makes it a misdemeanor for the clerk of the county court to record a brand when the person having it recorded fails to designate the part of the animal upon which the same is to be placed. This article was extracted from the act of March 23, 1874, ...