Sharp v. State , 29 Tex. Ct. App. 211 ( 1890 )

WILLSON, Judge.

This conviction is upon an indictment for the "theft of a steer. There are two counts in the indictment, the first alleging that the owner of the steer was unknown to the grand jury, and the second alleging, that I. E. Stout owned the steer. It is contended by counsel for the defendant that neither of the counts as to the allegations of ownership is sustained by the evidence, and we are of the opinion that the contention is well grounded. As to the first count, there is no evidence that the ownership of the animal was unknown to the grand jury, and that the grand jury used reasonable diligence to ascertain the fact of ownership. Mixon v. The State, 28 Texas Ct. App., 347. As to the secondcount, the evidence does not establish that I. E. Stout wasthe owner of the steer. On the contrary, to our minds the evidence shows that one Edwards was the owner. It had Edwards’s brand upon it, which brand was recorded and was therefore evidence of ownership. Edwards owned cattle in that brand on the range in Ellis County about the time the steer in question was missing from its accustomed range. The brand 5 upon the steer was not a recorded brand; was not evidence of ownership in Stout, and did not identify the animal as one of the lot of cattle bought by him of Edwards. Stout testified that he branded the cattle he purchased of Edwards with 5 on the left shoulder. The 5 brand on the animal in question was on the left hip. It does not appear upon which count the jury based their verdict. If either count was sustained by the evidence the verdict would be good, but as neither count was sustained as to ownership, the verdict can not stand.

We are further of the opinion that the evidence is insufficient to establish the defendant’s complicity in the theft of the steer. It merely shows his presence at the time the steer was taken by another. He was not seen do do anything or heard to say anything. He was not seen to render any ■aid, assistance, or encouragement to the person who took the steer, nor did he go with that person from the place where the steer was taken. • So far as the evidence shows, his only connection with the transaction was. that he was present at the time and place the steer was taken. It is well settled that the mere presence of an accused at the time and place of the-commission of a felony, if he takes no part by word or act in the crime, will not implicate him as a principal offender, even though he makes no-effort to prevent the perpetration of the offense. Jackson v. The State, 20 Texas Ct. App., 190; Golden v. The State, 18 Texas Ct. App., 637.

Other questions presented in the record are not determined because unnecessary to the present disposition of the case, and because they may not arise on another trial.

Because the conviction is not warranted by the evidence, the judgment is reversed and the cause is remanded.

Reversed and remanded.

Hurt, J., absent.