House v. State , 20 S.W.2d 792 ( 1929 )


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  • CHRISTIAN, J.

    The offense is theft of cattle; the punishment confinement in the penitentiary for four years.

    Mr. Reed lost several head of cattle. He later recovered two head from a pasture belonging to "one Theodore Spies. These two head of cattle carried the brand “R-bar.” One was a' white-faced Hereford cow and the other a red muley cow. Appellant was charged with the theft of these two cows. Witnesses for the state testified to the fact that about the time Reed lost his cattle appellant was in possession of about twelve or fifteen head of cattle in the vicinity of Reed’s place. He was driving these cattle along a public road in daytime. Theirs brands were mixed. One witness testified that he noticed a red muley cow with the “R-bar” brand on her. He thought the red muley cow-later found in Spies’ pasture suited the description of the cow seen in the herd driven by appellant. It seems to have been the .theory of the state that the cattle were abandoned by appellant and that they drifted into various pastures. Under the state’s theory, it was necessary to establish the fact thdt the two cows f-ound in Spies’ pasture by Reed were in the herd of twelve or fifteen cattle appellant was seen driving along the road. We gravely doubt the sufficiency of the evidence. The testimony identifying the animals found by the injured party in Spies’ pasture as having been in the'herd of cattle driven by appellant is of doubtful sufficiency.

    Over proper objection, the court permitted the state to prove by its witness Emil Sinast that, at about the time Mr. Reed lost his cattle, he (Sinast) missed some of his own cattle, and that upon mating search he found five head of his cattle in a pasture about fourteen miles from his place. There was no evidence showing that the Sinast cattle were in the herd appellant was seen driving along the public road. According to the qualification appended to the bill of exception, the testimony was admitted upon the theory that the herd of cattle stolen by appellant consisted of animals belonging to different persons, among the owners being Mr. Sinast, and that these cattle drifted back to various! pastures after they had been taken into the possession of appellant. We find n-o evidence in support of this theory. That the testimony in question was irrelevant and prejudicial seems obvious, as it consisted of proof of the loss of cattle not shown to have been in appellant’s possession. McClain v. State, 89 Tex. Cr. R. 48, 229 S. W. 550.

    For the error discussed, the judgment is reversed, and the cause remanded.

    PER CURIAM. The foregoing opinion of the Commission of Appeals has been examined by the judges of the Court of Criminal Appeals and approved by the court

Document Info

Docket Number: No. 12652

Citation Numbers: 20 S.W.2d 792

Judges: Christian, Morrow

Filed Date: 6/19/1929

Precedential Status: Precedential

Modified Date: 10/1/2021