Ashcroft v. State , 32 Tex. 108 ( 1869 )

Lindsay, J.

It has been heretofore decided by this court, the charge in an indictment that a party took up and used an estray, without first complying with the laws regulating estrays, was sufficient. The using or disposing of an estray is the gravamen of the offence. Under such a charge, the State has only to prove that the animal was running at large without a known owner, and that the accused, not being the owner, took it up and used it. The defendant may then confess and avoid, by admitting that-he took up and used the animal, but that he had authority for so using it; because he had the animal estrayed in the manner prescribed by law. When the State shows the taking up and using, the burden of proof is then thrown upon the defendant, to show he was justified in using it. The judgment is affirmed.

Affirmed.