Darnell v. State , 43 Tex. 147 ( 1875 )

Devine, Associate Justice.

The appellant was convicted of the theft of a cow, and assigns as error the overruling defendant’s motion to quash the indictment for the reasons set forth in the bills of exceptions; the refusal of the court to permit defendant to prove that he claimed the cow openly and notoriously at the time of her being taken; that the court erred in the charge to the jury, and in refusing a new trial and in overruling the motion in arrest of judgment.

The defendant was indicted for willfully driving from her accustomed range a cow, and taking the same into his possession with intent to defraud the owner. The taking was alleged to be without the consent of the owner. The indictment was found under article 766 of the Criminal Code, which makes such driving, with a fraudulent intent, theft, without reference to the value of the animal taken and driven. The objection to the term “ range,” or “ accustomed range,” as stated in the law and copied in the indictment, is not tenable. It is not necessary to particularize or describe the range further than the statement of its being “ the accustomed range ” of the animal charged to have been fraudulently driven away from it. Neither is it necessary to state what distance the animal had been driven; the general averment is sufficient. (The State v. Thompson, 40 Tex., 519.)

The charge of the court, so far as the rights of the accused are concerned, is not open to objection. The charge gave the law of the case clearly and fully to the jury; it pointed to facts in evidence which had a tendency to call the attention of the jury to what was evidently the chief reliance of defendant, and the objection raised that in one paragraph of the charge the court informed the jury that if the evidence satisfied them that in driving the animal out of her accustomed range defendant was not, under the circumstances, guilty of theft, they would assess the punishment at a fine not to exceed double the value of the cow, and immediately after informed the jury that if they believed defendant did not take possession of the cow and drive her from her accustomed range with intent to defraud .the owner, they should find him not guilty. That the jury were informed that under certain circumstances the offense could be by them reduced from the grade of a felony to a trifling misdemeanor, punished by an insignificant fine, is certainly a charge of which the defendant ought not to complain.

The fourth instruction is urgently presented in exceptions, motion for a new trial, and the brief of appellant. It is as follows : “ On the trial of any criminal action, when the facts have been proven which constitute the offense, it devolves upon the accused to establish the facts or circumstances on which he relies to excuse or justify the prohibited act or omission.” Iu this we find no error. The instructions asked by the defendant, covering every possible shade of defense or reasonable doubt of his guilt, were given by the court without alteration.

There is, however, one bill of exceptions, which embraces the assignment of error respecting the refusal of the court to permit the owner of the cow, on his cross-examination, to answer the question, “if defendant did or did not openly claim the cow at the time witness went after her,” and which is well taken. The proof on the part of the State was, that the accused had taken the cow the evening before out of a small lot of cattle and in the presence of a person who informed the owner; that next morning the cow was found in his herd of cattle which he had been gathering up for some time preparatory to his driving to Hew Orleans and Galveston; that the cow had a brand the same as the brand on five or six head of stock which were in that neighborhood, and which he was authorized by the owner to gather on shares. These facts were testified to by .the owner of the stock, who had purchased a stock of cattle at a bankrupt sale, and the five or six head having escaped from the pen after being collected some time previous. It was also shown by a witness, and by other witnesses, who had a stock of cattle with defendant’s herded on the prairie, that the accused claimed a cow in the “ range ” where the animal taken ranged, and that he had spoken of his intention to drive her with the others to market. We think, under the circumstances connected with the taking and holding possession of the cow, together with defendant’s authority from the owner to collect the missing stock in the Tinnin or J. T. brand, it being the same brand as the one on the cow charged to have been driven away, that the claim of ownership asserted by the accused should have been admitted in evidence. We cannot say what effect it might have had upon the jury, but it was his right; and where the evidence was conflicting it may have had, if admitted, a decided influence in his favor.

For the error in excluding the declarations of the claim, of ownership made when the cow was claimed by the owner, the judgment is reversed and the cause is remanded.

Reversed and remanded.