Alexander v. State
Alexander v. State
Opinion of the Court
It is alleged in the indictment that the animal stolen 'was the property of E. H. Wilson, and that it was taken from the possession of said E. H. Wilson. The evidence shows that the animal, at the time it was missed from its accustomed range, was under the care, management and control of one Fernandez, who had been hired by the owner, E. H. Wilson, to mark, brand and look after his stock of cattle, running on and about said Wilson’s ranch. Said Fernandez had no authority to sell or dispose of any of said cattle, but had the care, management and control of them in all other respects. These facts constituted Fernandez the possessor of the cattle, and he, and not Wilson, was therefore in possession of the animal in question, at the time it was stolen, said animal being one of the stock of cattle under his care, management and control. Hence there is a material variance between the allegation and the proof of” the possession of said animal; because of which, the conviction must be set aside. (Hall v. The State, 22 Texas Ct. App., 632; Briggs v. The State, 20 Texas Ct. App., 106; Littleton v. The State, Id., 168; Bailey v. The State, Id., 68; Bailey v. The State, 18 Texas Ct. App., 426; Frazier v. The State, Id., 434; Tinney v. The State, ante, p. 112.)
We find no eror in the charge of the court; nor do we think that the court erred in refusing the special charges requested. One of said special charges was embraced substantially in the general charge, and the other, with reference to the effect as evidence of a recorded brand, was properly refused because upon the weight of evidence. While a recorded brand is admissible in evidence to prove ownership, the statute does not make it prima facie proof of ownership, nor attach to it any peculiar weight, or even expressly declare it to be admissible evidence. It is like any other evidence of ownership, and, having been admitted in evidence, is for the consideration of the jury
Because of the varience between the allegation and the proof as to possession, the judgment is reversed, and the cause is remanded.
Reversed and remanded.
Reference
- Full Case Name
- Tim Alexander v. State
- Cited By
- 2 cases
- Status
- Published
- Syllabus
- 1. Theft—Possession—Evidence—Variance.—1The indictment alleges both the ownership and possession of the alleged stolen animal to have been in one W. The evidence shows conclusively that, when taken, the animal was under the care, management and control of one F., who held it for W. Held, that the variance between the allegation and proof of possession is fatal to the conviction. 2. Same—Brand—Charge of the Court—While the statute makes a recorded brand admissible as evidence of ownership, the statute does not make it prima facie proof of ownership, and it can be considered only as any other evidence before the jury could be considered. To have given a requested charge upon the effect of such evidence would, therefore, have been to give a charge upon the weight of evidence, which the trial court properly refused to do.