Herber v. State

• Citation: 7 Tex. 69
• Parties: HERBER v. THE STATE.
• Decision Date: 01 January 1851
• Court: Supreme Court of Texas

7 Tex. 69

HERBER

v.THE STATE.

Supreme Court of Texas.

1851.

An unregistered brand constitutes, of itself, no evidence of title.

Where it was proved by a witness for the prosecution that, being out in the prairie with the defendant's son, hunting cattle, he first saw the yearling heifer in question; that it was claimed by the son as the property of his father, and driven up and penned in defendant's cow-pen; that it was publicly claimed by the defendant as his property, and publicly branded by him; that on witness telling him he was acting imprudently in branding it, as it had on it the brand of Tom, the prosecutor, he replied that it was his own, and he would do it: Held, That the evidence did not warrant a conviction for larceny. (Note 12.)

Quere whether the Supreme Court will revise the refusal of the court below to grant a new trial in a criminal case where the question is one of fact merely.

The defendant in a criminal case is not entitled to a new trial on the ground that he has discovered since the trial that the witnesses for the State, who had been for a long time subpœnæd, could be discredited, by showing that their reputation for veracity was bad.

Where a defendant is convicted of an offense committed before the first day of January, 1849, the punishment of which was changed by the act which took effect on that day, and where it is doubtful whether the change was a mitigation or not, the defendant should be permitted to decide for himself.

Appeal from Guadalupe. The defendant was indicted on the 16th of March, 1848, for stealing one heifer yearling, the property of William Tom; verdict of guilty returned on the 4th May, 1850; judgment of the court, that he receive thirty-nine lashes on his bare back; motion for a new trial, and in arrest of judgment; both overruled, and defendant appealed.

The grounds assigned in the motion for a new trial were--

1st. The verdict was contrary to law and contrary to evidence.

2d. The discovery of new evidence since the trial.

Tom, the supposed owner, testified that he had lost a heifer calf, branded with his brand, W. T., some months before the alleged larceny; that he had never seen it since; the description he gave of it corresponded with the one charged to have been stolen. It was not proved that the brand of Tom had ever been registered. It was proved by a witness for the prosecution, that, being out in the prairie with appellant's son, hunting cattle, he first saw the yearling in question; that it was claimed by the son as the property of his father, and driven up and penned in appellant's cow-pen; that it was publicly claimed by the accused as his property, and publicly branded by him; that on witness telling him he was acting imprudently in branding it, as it had on it the brand of Tom, he replied that it was his own, and he would do it.

On the ground of newly-discovered evidence, the appellant filed affidavits to the effect that he had lately discovered that two of the witnesses on behalf of the State could be discredited, by showing that their reputation for veracity was bad.Attorney General, for appellee.

LIPSCOMB, J.

There was no evidence to fix the ownership in Tom that would be entitled to much if to any consideration, independent of and not derived from the fact of its being branded with his brand. To have made the brand any ground of presumption, it should have been registered. Article 2432, Hart. Dig., is in the following words: “No brands, except such as are recorded by the officers named in this act, shall be recognized in law as any evidence of ownership of the cattle, horses, or mules upon which the same may be used.”

Again, there was not the slightest evidence of any attempt at concealment, which is the first and most important element of larceny. The evidence shows conclusively that it was an open and an avowed claim of property by the appellant; in which, whether he was right or wrong, is left extremely uncertain. And if the evidence constituted or tended to prove any offense, it was a different one from the charge contained in the indictment. It was under article 2427 of Hartley's Digest, and for altering the brand, the heifer not being his own property, without the consent of the owner, that the...