Calloway v. State

Citations

• 7 Tex. Ct. App. 585

Syllabus

<p>1. Ex Post Facto Law. —It is well settled that a law is ex post facto which so alters the rules of evidence in criminal cases as to allow a conviction on less or different evidenee than was requisite when the offence was committed.</p> <p>2. Same. — Art. 426 of the Revised Code of Criminal Procedure provides that “ where property is owned in common, or jointly, by two or more persons, the ownership may be alleged to be in either or all of them.” This is a new provision, and warrants a conviction on different evidence than the preexisting law, and therefore, with reference to offences committed before the Code took effect, is ex post facto and inoperative.</p> <p>3. Defacing Cattle-Brand—Variance. — Since the Revised Codes took effect, the appellant was tried on an indictment which charged that he, in 1876, defaced the brand on a certain animal, with intent to defraud one G-., alleged to be the owner. The proof showed that the animal, when the offence was committed, belonged jointly to said Gr. and one W., and was not under the exclusive control of either of them; and the defence moved to exclude this proof, because of variance between it and the allegation of ownership. Held, that the motion to exclude should have been sustained, inasmuch as the variance was fatal prior to the said new provision of the Revised Code of Criminal Procedure, which, with reference to the offence on trial, is ex post facto and inapplicable.</p>