Alexander v. State , 24 Tex. Ct. App. 126 ( 1887 )

Willson, Judge.

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 like any other evidence, and the court is not required to, and ordinarily should not, call particular attention to it in the charge.

Opinion delivered October 29, 1887.

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.