Sapp v. State

• Decision Date: 09 December 1903
• Citation: 77 S.W. 456
• Parties: SAPP v. STATE.
• Court: Texas Court of Criminal Appeals

77 S.W. 456

SAPP v. STATE.

Court of Criminal Appeals of Texas.

December 9, 1903.

Appeal from District Court, Brazoria County; Wells Thompson, Judge.

Bill Sapp was convicted of cattle theft, and appeals. Reversed.

Brockman & Kahn and E. T. Branch, for appellant. Howard Martin, Asst. Atty. Gen., for the State.

HENDERSON, J.

Appellant was convicted of theft of cattle, and his punishment assessed at confinement in the penitentiary for a term of two years; hence this appeal.

There was no error in the action of the court striking out appellant's plea of former jeopardy. The acquittal under the former indictment alleged possession and ownership of the property to be in one Turner, whereas the present indictment alleged the property to be in Moller. It is difficult to see how appellant could have been convicted under the former indictment for the theft of Moller's property. If, on the trial of the present case, the proof had shown that the property was not Moller's, but Turner's, appellant could not have been convicted under this indictment because of the variance. Hence there was no error in the action of the court striking out said plea, and there was no suggestion in the evidence here that the property alleged to have been stolen was Turner's, or any issue of that sort presented.

Bills Nos. 2, 3, and 4 are with reference to the admission in evidence of marks and brands on the alleged stolen animal. The mark was admissible in evidence without regard to its record. The unrecorded brand could not be used as proof of ownership, but could be used as any other flesh mark, in connection with other testimony, to identify the animal. Turner v. State, 39 Tex. Cr. R. 327, 45 S. W. 1020; Welsh v. State, 42 Tex. Cr. R. 338, 60 S. W. 46. In this case there was evidence of the witness who branded the animal that the mother had the same mark and brand, which he placed on the animal, and that said mother was claimed by and in the possession of Moller. Now, he branded the calf in the cow's brand, because it was the calf of its mother, and this testimony was admissible for the purpose of identifying the animal, and as a circumstance tending to show the ownership of it. However, it was the duty of the court to have distinctly instructed the jury on the subject of an unrecorded brand, which it failed to do.

It was not competent for the state to show the disposition of the animal after defendant's arrest, and in his absence. What other persons did as to sending it back and turning it loose in the range where Moller's cattle ran was not a transaction binding on defendant, but was calculated to impress the jury against appellant on the question of ownership. It was incumbent on the state to make out the ownership of the animal as alleged, but this should be done by competent, and not by hearsay, evidence.

It was shown that Moller, the alleged owner, had died since the indictment was found in this case, and the state was permitted to show that he attended several terms of court while living. This was objected to on the ground that it was an indirect method of showing Moller's want of consent. The bill does not show by whom Moller was summoned—whether for the state or defendant. But where positive evidence cannot be had to show want of consent this can be proved by circumstances, and we think it could be shown that Moller, during his lifetime, attended court as a witness on behalf of the state, as a circumstance tending to show his want of consent.

The state placed C. H. Coleman on the stand as a witness. On his direct examination he testified that he was with appellant when the cattle were driven from Brazoria county into Houston, and helped drive them; that he did this at the instance of appellant; that he was with appellant when he bought the cattle from a negro named Jackson Harris on the prairie. At this juncture the state claimed surprise at his testimony, and then laid a predicate for his contradiction, both by his written statement made to the district attorney, and by the district attorney and Sheriff Weems; that is, he was asked if he did not make a written statement to the district attorney in which he swore that they got the cattle at appellant's house. Witness denied the statements attributed to him. The state was then permitted to contradict said witness by his sworn statement, and also by the district attorney and sheriff. This was objected to on the part of appellant on the ground that Coleman was a state's witness, and had delivered no testimony detrimental to the state of an affirmative character, but had merely failed to testify to facts for the state. We think this procedure was without error. The witness did testify to an affirmative fact very detrimental...