Turner v. State

• Citation: 45 S.W. 1020
• Parties: TURNER v. STATE.
• Decision Date: 25 May 1898
• Court: Court of Appeals of Texas. Court of Criminal Appeals of Texas

Page 1020

45 S.W. 1020

TURNER v. STATE.

Court of Criminal Appeals of Texas.

May 25, 1898.

Appeal from district court, Archer county; George E. Miller, Judge.

J. B. Turner was convicted of theft, and he appeals. Reversed.

L. H. Mathis, Davis & Garnett, S. B. Garnett, and Potter & Potter, for appellant. W. W. Walling and Mann Trice, for the State.

HENDERSON, J.

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

The evidence on the part of the state tended to show that the alleged stolen animal was taken in November or December of 1896, or in January of 1897. The proof as to the ownership of the head of cattle in question in the prosecutor, E. P. Davis, consisted in the following facts: That said Davis lived in Throckmorton county; that he had a ranch of about 95,000 acres in Throckmorton and Young counties; that he owned a large number of cattle; and that he had several cattle brands, and, among others, gave the brand "6" on the left side, "6" on the left hip, mark crop off of right ear, and under bit in the left ear; that sometimes he had cattle to stray or go into Archer county. Five head of steer cattle bearing his said mark and brand were seen in the L. M. pasture, in Archer county, some year or two before the alleged theft. The particular head of cattle alleged to have been stolen was one of these, designated as a "brindle steer." In the fall of 1896 it was shown that the brands and marks of at least two of said five head of steers, including the brindle one, had been changed by burning the "6," and making a "B" of it, and by placing a cross between the two "B's." The mark had been changed by cutting out the underbit in the left ear, and making an underslope thereof. The evidence abundantly showed that the brand of the brindle steer had been thus changed. The weight of the evidence was to the effect that the brand "6," instead of being on the left side of the animal, was on the left shoulder, though one or two witnesses state that the brand was just behind the left shoulder. The prosecutor testified that his mark and brand were as above stated, and that he had sold no cattle in that county. The testimony tended to show that appellant sold said brindle steer to Mathers and Routzahan in the latter part of 1896 or the early part of 1897, and that at that time the brand and mark had been changed, and the animal dehorned. Webb bought the animal from Routzahan, and he was cut out of his herd by direction of Chesher, who represented the cattle association. A number of circumstances were introduced in evidence showing fraud on the part of appellant. As proof of ownership, the state introduced a certified transcript of the registration of the mark and brand of Davis, the prosecutor, recorded in Archer county, on the 1st of March, 1898. The record shows as follows:

NOTE: OPINION CONTAINING TABLE OR OTHER DATA THAT IS NOT VIEWABLE

The theory of the defense, which he supported by evidence, was to the effect that he bought the animal in question, with four others, from a stranger, who was driving a herd of three or four head through that county in the fall of 1896; that the animals then bore the mark and brand found on them when sold by appellant, to wit, "B" on left shoulder, cross on left side, and "B" on the left hip; and that they were also then dehorned. It seems to have been conceded on the trial that the brands had been changed by burning the "6's" into "B's.' Appellant, however, testified that he did not discover the same at the time he bought them or afterwards.

Appellant objected to the introduction of the certified record of marks and brands of E. P. Davis—"First, because upon its face the mark and brand appeared to have been recorded after the commission of the alleged offense; second, because none of the cattle mentioned by any of the witnesses in the case as having ever been in the possession of the appellant ever had the two `6's' on them in the place described in the recorded brand; and, third, because there were other marks and brands on record, both in Archer and Throckmorton counties, Tex., purporting to be E. P. Davis' marks and brands. And in that connection he introduced a certified copy of the registration of marks and brands, showing that prosecutor gave other marks and brands."

The question as to the admissibility of a brand recorded after the date of the alleged theft has been before this court a number of times. See Priesmuth v. State, 1 Tex. App. 481; Spinks v. State, 8 Tex. App. 125; Combes v. State, 17 Tex. App. 266; Groom v. State, 23 Tex. App. 87, 3 S. W. 668. These decisions appear to hold that such certificate of registration of brands, though recorded subsequent to the alleged theft, is admissible in evidence, not for the purpose in itself of proving ownership, but to be used as a circumstance, in connection with the other circumstances, to prove the identity of the alleged stolen animal. In other words, we understand the effect of the decisions to be that this certified copy can be offered, in connection with the other facts, merely to show a flesh mark on the animal in question. This being true, we can see no legitimate purpose in offering the recorded brand at all, as parol proof can be made of the certain fleshmarks on the animal regardless of the record of the brands. From this point of view, we do not see what useful purpose the introduction of a subsequent recorded brand would serve in a case. However, we agree with the decisions to the effect that such subsequent record of the brands is no proof of title to property which had been previously stolen. Article 4930, Rev. Civ. St. 1895, provides that "no brands, except such as are recorded by the officers named in this chapter shall be recognized in law as any evidence of ownership of the cattle, horses or mules upon which the same may be used." This statute would seem to construe itself, and to clearly convey the idea that an unrecorded brand shall not constitute evidence of ownership. Now, if the recorded brand shall be evidence of ownership, when must it be recorded? Obviously, it occurs to us, anterior...