Hays v. State

• Decision Date: 28 November 1891
• Citation: 17 S.W. 940
• Parties: HAYS v. STATE.
• Court: Texas Court of Appeals

17 S.W. 940

HAYS v. STATE.

Court of Appeals of Texas.

November 28, 1891.

Appeal from district court, Bosque county; J. M. HALL, Judge.

Prosecution of Charley Hays for theft of cattle. Defendant was convicted, and appeals. Affirmed.

Lockett & Kimball and Pearre & Boynton, for appellant. Richd. H. Harrison, Asst. Atty. Gen., H. S. Dillard, and M. M. Crane, for the State.

DAVIDSON, J.

Appellant was convicted of the theft of cattle alleged to be the property of W. Caufield. Over the objection of appellant, the prosecution was permitted to introduce in evidence the record of the brand of M. G. Tucker. The objections stated are that "said record was not the record brand of the alleged owner of the property, and because the record did not designate the particular part of the animal on which the brand was to be placed,¹ but required it to be on the left or right side, and because it was shown to have been changed, the words' or right side' being interlined with different colored ink." The proof is that the brand as adduced on the trial was originally the brand of said Tucker, and used by him until he sold it to W. Caufield, the alleged owner of the cattle charged in the indictment to have been stolen. Long anterior to the alleged theft, Caufield had been the owner of the brand, and was the owner of the cattle in question. The record designates the part of the animal upon which the brand should be placed as the "left or right side." This same question was before the court in Thompson's Case, 25 Tex. App. 167, 7 S. W. Rep. 589, and it was there held that the part of the animal upon which the brand was to be placed was sufficiently designated in the record thereof, wherein it specified that it was to be placed on the "hip, thigh, and flank." The particular side of the animal in that case, as in this, was not specified. In Harwell's Case, 22 Tex. App. 254, 2 S. W. Rep. 606, it was held that "the variance between the place of the brand on the animal and that designated in the record for said brand to be placed does not destroy the admissibility of the record as evidence of ownership. It merely impairs the probative force of the record. In such case, the record alone, unsupported by other evidence, is not sufficient proof of ownership. Priesmuth v. State, 1 Tex. App. 481."

Appellant contends that this is a case in which the state relies wholly upon circumstantial evidence to sustain the conviction, and therefore the court, failing to charge the law of that phase of the case, committed error of omission, which is fatal to the conviction. In other words, it is contended that the evidence does not show by direct and positive proof that the defendant was engaged in the original taking, but that fact must be inferred from the other facts adduced. In substance the testimony discloses that the alleged owner, Caufield, was the owner of the steers in question, and the brand upon them, and that appellant knew both facts. He advised Hinton against estraying the red steer, assigning his reason therefor, — that it was Caufield's, and was in his brand. This was in the summer of 1888. Subsequently this steer found its way into appellant's pasture, a few miles from where it usually ran. For two or three months it ran in this pasture. The evidence is silent as to how it reached the pasture. The fencing in places was not good, and horsemen could ride under the wire inclosing it at one place, and stock could go in and out. Appellant knew of the presence of the steer in the pasture for some months, and so stated subsequent to his arrest for its theft. During the evening of January 6, 1889, appellant employed W. J. McFadden to meet him at his pasture on the following morning to assist him in driving some cattle from there to Kopperl, about 40 miles distant. In pursuance of this employment, McFadden went to the place designated at the time agreed upon. When he reached the pasture he found the cattle in a pen, those in controversy being among the number. Soon afterwards appellant came, accompanied by a stranger to the witness, but who was introduced to him by appellant as W. G. Green. When they arrived at the pen Green sold the steers in question to appellant for $37. Appellant wrote a bill of sale from Green to himself, and Green signed it. As soon as the sale bill was executed, Green changed the marks and brands on the cattle, so as to obliterate the old ones. Appellant then drove the cattle to Kopperl, and Green disappeared, and at the date of the trial had not been seen or heard of by any of the witnesses. In this connection appellant testified that he "bought the steers from Green, who stayed at my house in Valley Mills the night before, and we went up to the pasture where the steers were, and were in the pen, and I bought them. I asked Green about his right to sell the steers, and he stated they were a part of the steers...