Hudson v. State , 79 Tex. Crim. 148 ( 1916 )

Appellant was convicted of theft of a horse, the property of C.D. Caldwell, and his punishment assessed at two years confinement in the State penitentiary.

No exceptions were reserved to the introduction of any testimony, and no exceptions reserved to the charge of the court. However, appellant in his motion for a new trial complains that the court erred in not submitting the issue of whether or not appellant was guilty of wilfully driving stock from its accustomed range as defined in article 1356 of the Penal Code, claiming the evidence raised that issue, and if they so found to acquit him, as he was charged with theft of the horse under article 1353.

According to our view of the testimony there was no evidence raising that issue. It is true, there is a suggestion the animal might have been on the range when he took possession of it, but the evidence and all the evidence is that when he took possession he did so under a claim of ownership, telling two men that he had bought the animal from a man he did not know, near Lubbock. This issue was fairly submitted in the charge, and the judgment is affirmed.

Affirmed.