Coward v. State

White, Presiding Judge. Appellant was convicted upon an indictment charging him with the theft “of one head of neat cattle,” the property of Wm. Kelso, Sr. It is shown by the evidence that two animals belonging to the alleged owner were found with their ear marks changed into the ear mark of defendant and the brand upon one of the animals was also obliterated and the brand of defendant placed upon it. One was a cow, the other was a yearling and the calf of said cow. When the cow was first seen after her ear mark was changed, she was in a pen and defendant and another party were present. When she was claimed as the property of Kelso, defendant asserted no claim to her, but helped to turn her out of the pen; nor did he make any explanation as to the fact that the ear mark had been changed into his ear mark. The yearling was found afterwards upon the prairie, with its mother and with its ear marks and brand both changed into the mark and brand of defendant. It occurs to us that the indictment would have made a case less difficult had it been brought for altering or defacing a mark and brand, as provided in article 760 of the Penal Code. We see no good reason, however, why a fraudulent taking of an animal may not be evidenced by an illegal marking and branding for the purpose of permanently appropriating it, since asportation is not necessary to constitute theft (Penal Code, art. 726), and since it is manifest that marking or branding can not be accomplished without an actual manual possession of the animal by the party engaged in it. There are two questions which present themselves on the re [595] ■cord, growing out of the charge of the court with reference to the facts. In the first place, the evidence shows the theft of two animals, whilst the indictment only charges the theft of one. Contemporaneous acts or crimes are admissible as evidence to show motive, intent, identity, etc., and it was admissible to prove, as was done, that the marks upon both animals were defendant’s, and further to establish by the facts stated that they must’ have been changed at or about the same time. This tended to show motive, intent and identity of the party committing the crime. But the question is, which of the two animals stolen was the one named in the indictment, and for which the prosecution was being conducted? If the yearling, then proof that the cow also had been taken was proof of an independent crime, which, though admissible as evidence of motive, etc., was not proof of the crime charged, and vice versa. Under such a state of facts it was all important that it should have been known which animal the prosecution was claiming a conviction for; so that the court could explain and limit in the charge to the jury the only purpose for which the evidence affecting the other animal was admitted. This the court nowhere does in the charge, and the failure to do so is reversible error. Again, the evidence shows an unexplained possession of property recently stolen, and the jury were not instructed upon the rules of law applicable to such a character of theft. This omission was also error. Upon these two points see Boyd v. The State, ante, 570, and authorities cited. When considered in the light of the evidence, we have serious doubts if the judgment rendered in this case is sufficiently certain as to enable the accused to plead it successfully in bar of another prosecution for the same offense. The indictment charges the theft of one head of neat cattle. This seems sufficient in so far as that instrument is required to allege. (Willson’s Texas Crim. Law., sec 1316.) But the evidence shows that two animals were taken, not at the same time it would seem, but under similar circumstances. It is impossible to identify the particular animal the defendant has been convicted of stealing. If hereafter prosecuted for theft of the cow and he should plead this judgment in bar, could he do so successfully, should the State claim that the present prosecution and conviction were not for theft of the cow but the yearling, or vice versa? Such uncertainty could and should be avoided by a selection on the part [596] of the prosecution, of the animal for the theft of which the conviction would be claimed. Opinion delivered January 28, 1888. The judgment is reversed and the cause is remanded for another trial. Reversed and remanded.