Criswell v. State , 24 Tex. Ct. App. 606 ( 1888 )

White, Presiding Judge.

Appellant and his brother, John Criswell, were jointly indicted for the theft of a mare, the property of one Rosser. They severed at the trial, and this appellant was put first upon trial and was convicted. The inculpatory evidence against this defendant was that he and his brother John were partners in the stock business, and owned a joint brand, which brand was placed by some one upon the animal in question, and at the same time the brand of Rosser, which was upon her, was defaced and altered; that the mare ranged with the stock of one White, who lived within two miles of appellant, that appellant and his brother John frequently hunted stock in said range, and that, after the mare was put into their brand as above stated, this appellant claimed the mare as his and frequently asked White how she was doing. This change of the brands was made in the fall of 1884, and the animal was taken from her range and recovered by Rosser.from the possession of John Criswell, appellant’s co-defendant, in May, 1885. No explanation as to the character of their claim to and possession of the animal was made by either of the defendants. There does not, however, appear to have been any attempt on the part of either, and especially this appellant, to conceal the fact that he or they did claim the animal.

Before announcing ready for trial, the appellant made a motion for a continuance, which was overruled, the purpose of which was to prove by the absent witness that one Russell owned and claimed the mare, and had sold her to the co-defendant -John Criswell.

Opinion delivered February 1, 1888.

On his trial this appellant proved by two witnesses that there were in fact two gray mares, resembling each other and branded in the same “holding” brand, running on the same range together, near White’s, and that this “holding” brand was this appellant’s and Russell’s.

Evidently the defense, so far as this appellant was concerned, was, that the mare was taken by mistake; that when defendant -told White the mare was his and asked White to look after her, he, appellant, was alluding to and speaking of the Russell and not the Rosser mare, and that in truth and in fact he had never intended to assert a claim of ownership in but the Russell mare. TTis defense being a mistake of fact, the court should have submitted that issue to the jury by proper instructions, which was not done. In support of his defense, when the evidence which he adduced at the trial was again considered in connection with his application for a continuance on the motion for a new trial, we think it apparent that the court should have granted the latter motion.

The judgment is reversed and the cause remanded for a new trial.

Reversed and remanded.