Thompson v. State , 25 Tex. Ct. App. 161 ( 1888 )

Hurt, Judge.

This is, a conviction for theft of cattle. Two grounds are relied upon in the brief of counsel for a reversal of the judgment. Tom Waggoner is alleged to be the owner of the cow. No witness knew the animal to be the property of Waggoner except by the brand. To show title in Waggoner, the State introduced in evidence the record of the cattle brand of Waggoner. The brand was recorded on the twenty-third day of November, 1886. It is objected that the record fails to designate the part of the animal upon which the brand is to be placed. If this be so, then the record of the brand is not admis. sible. (Penal Code, art. 783; Harwell v. The State, 22 Texas Ct. App., 251.)

The objection of appellant is that the record fails to show upon which side of the animal the brand is to be placed. This is so, but is this required by the statute? Article 783 (supra) provides that if “any clerk of the county court shall record any brand when the person having the same recorded fails to designate the part of the animal upon which the same is to be placed, shall be fined not less than ten nor more than fifty dollars.” Unless the part of the animal upon which the brand is to be placed is designated, the brand should not be recorded at all, and hence it could be evidence of nothing though it should be recorded—the act of recording such a brand by the clerk being an offense against the laws of this State. But is this brand record obnoxious to the objection urged?

From the record the brand appears to be three Ds—one to be placed upon the hip, one upon the thigh, and one upon the flank of the animal—the side not being designated.

Question: Is it necessary to designate the side of the animal, whether the right or the left, upon which the brand is to be placed, in order to comply with section 30 of the act of April 8, 1874? We are of the opinion that it is not, and that the designation of the part of the animal upon which the brand is to be placed, to wit, on the “hip, thigh and flank,” contained in the record, is sufficient.

The second ground relied on for reversal of the judgment is that the evidence is not only insufficient, but that the verdict is against the weight of the evidence—that the innocence of defendant was clearly established.

There is a serious conflict in the testimony. Turknett, evidently an accomplice, swears to facts which, if true, are unquestionably sufficient to sustain the verdict. But, being an accomplice, he must be corroborated to warrant a conviction. Was he corroborated ? If the two women are worthy of credit, he was most clearly corroborated. Then, stripping the case of the evidence for the defendant, there can be no question as to the sufficiency of the evidence to support the verdict, if the witnesses are worthy of belief.

Opinion delivered March 7, 1888.

On the other hand, if the witnesses who testified for the defendant are truthful, there can be no doubt of the innocence of the appellant, nor can there be less doubt of the guilt of the State’s witness, Turknett. The case, is, therefore, one of conflict of evidence, with a greater number of witnesses-swearing for defendant, and testifying to facts which, if true, demonstrate his innocence. But, as there is sufficient evidence—evidence cogent and certain—clearly showing appellant’s guilt, if true, and as the jury are the judges of the credibility of the witnesses, we cannot disturb their verdict, though from this record we might have reached a different conclusion from that arrived at by the jury.

Though the point is not presented in the brief of counsel, it is assigned as error that the court below erred in first refusing a continuance on the ground of absent testimony, and in 'after-wards refusing to grant a new trial. We have very carefully considered this assignment, in connection with the evidence in the statement of facts, and, while some of the desired evidence is cumulative, we are of the opinion that other facts to be established by the testimony were not of this character, and were very material for the defense. It was the first application, and due diligence having been used and shown, the new trial should have been granted. For this error the judgment is reversed and the cause remanded.

Reversed and remanded.