Alford v. State , 31 Tex. Crim. 299 ( 1892 )

Appellant was convicted of altering the brand upon cattle not his own, without the owner's consent, and with intent to defraud. The indictment alleged ownership in W.F. Aaron, and the testimony disclosed the fact to be that he was the agent of one Roach, and had the actual care and management of the cattle at the time the brand was altered upon them.

Upon the trial the defendant objected to evidence showing Aaron's alleged ownership, because, under article 760 of the Penal Code, the ownership could only be averred in Roach, the actual owner. In other words, it is contended that ownership, under said article, is not constituted as in cases of theft, by actual care, and control, and management of the property. We are of opinion that such possession is sufficient to constitute ownership under the cited article, and that in this respect there is no difference between the law of theft and altering brands.

Under statutes in this State prohibiting and punishing fraudulent acquisition of property without the consent of the owner, ownership is constituted by the actual care, control, and management of the property, and it is sufficient if the indictment allege ownership in such person, whether it be for theft or altering brands with intent to defraud; such fact being alleged, and such possession shown, ownership is proven. Alteration of a brand with intent to defraud is but a species of theft, and by statute is punished as theft. The State, in order to sustain its case, must prove the allegation; otherwise there will be a variance, and the accused should be acquitted.

The cattle were branded in December, 1888, just prior to Christmas, and on the following day driven by defendant and others across the Rio Grande into the Republic of Mexico. In May, 1889, Roach, the actual owner, recovered four head of his cattle in Mexico, one of which he recognized as having formerly been on his ranch in Texas. The brand on all of the cattle had been altered in the same manner as those branded by the defendant the previous December, and when recovered had been changed about three or four months, as well as the witness could tell from the appearance of the brand. This evidence was objected to on several grounds, none of which were well taken. The testimony was admissible.

At the time the brand was altered the cattle were in the enclosure of Dewees, which was under the control and management of one Oscar George. This ranch adjoined the ranch of Roach, which was controlled and managed by Aaron. Defendant contends that the cattle had strayed into the enclosure of Dewees, and that that fact changed ownership from Aaron into George, and constituted George the owner, in that the latter was thereby placed in possession and actual care, management, and control of the cattle, to the exclusion of Aaron. We do not so understand the law, nor can we agree that it is a sound proposition that cattle can by their act or volition change ownership in themselves from one person to another. Our law does not contemplate such a change of ownership in property.

The court did not err in failing to charge the law in relation to accomplice testimony. Mrs. Davis was not shown by the testimony to be an accomplice. Neither the knowledge on her part that an offense was being committed, nor the mere concealment of such knowledge, constituted her an accomplice.

If the testimony of Mrs. Davis is to be credited, and the jury seem to have given it credence, the defendant was properly convicted.

The judgment is affirmed.

Affirmed.

Judges all present and concurring.