Coward v. State

Citations

• 24 Tex. Ct. App. 590
• 7 S.W. 332
• 1888 Tex. Crim. App. LEXIS 14

Syllabus

<p>1. Theft—Indictment.—Inasmuch as asportation is not necessary in this State to constitute theft, and inasmuch as the marking and branding of an animal can not be accomplished without an actual manual possession of the same by the person so doing, an illegal marking and branding of an animal for the purpose of appropriating the same will evidence a fraudulent taking. But note the opinion for a state of proof which would more properly support an indictment for defacing or altering brands, as that offense is defined by article 760 of the Penal Code. ,</p> <p>3. Same—Charge of-the Court—Evidence—Case Stated—Jud&ment. The indictment charged the appellant with the theft of “one head of neat cattle.” The proof shows that the cow of the alleged owner, with her original ear marks changed'into the ear marks of the appellant, was found in the pen of the appellant, the appellant and another being present. To the owner’s claim of property, the appellant asserted no counter claim, nor did he offer any explanation of his possession, but helped to turn the cow out of the pen. Afterwards, a yearling, the offspring of the cow, was found upon the range, both the brand and the ear marks of the ■ owner of the cow, originally upon it, having been changed to the brand and earmarks of the appellant. Held, that the proof should have been made to designate which of the animals was referred to in the indictment, and the charge of the court should have limited the evidence respecting the other animal to the legitimate purpose for which it was received. For the same reason,—that it does not identify the animal referred to in the indictment,—the evidence is insufficient to support the judgment of conviction.</p> <p>3. Same—Possession ,oe Recently Stolen Property.—The charge of the court was otherwise erroneous inasmuch as, although the proof established an unexplained possession of property recently stolen, it failed to instruct the jury upon the law applicable to that phase of the ease.</p>