Fletcher v. State , 1884 Tex. Crim. App. LEXIS 158 ( 1884 )

Willson, Judge.

In our opinion this conviction is not sustained by the., evidence. It is not shown beyond a reasonable do.ubt, that the. mare and colt were the property of H. W. KeiningEam at the time the same, were taken by defendant. Keinirigham testified, that he owned a mare and colt, which his son p^bhásed frbin .one Marchbanks, and this mare and colt were shown by other testimony to be the same that were taken by" defendant, although Keiningham described the brand upon the1 rngre incorrectly.... But Keiningham did not state when he was the owner of said mare and colt, whether at the time of or subsequent to the alleged taking of her by the defendant, or whether before or after the presentment of this indictment. If he was not the owner of the mare and colt at the time they were taken by the defendant, as alleged in the indictment, this conviction could not be sustained, because there would be a material and' fatal variance between the allegation and the proof. It was essential, therefore, for the State to prove the ownership as alleged, and that such ownership existed at the time of the taking of the property. This proof, in our opinion, the State failed to make. ...

Again: The evidence fails tó establish beyond a reasonable doubt the most essential element of this offense, that is, a fraudulent intent on the part of the defendant in taking the animals. There are some slight circumstances tending to show such intent, but on the other hand the decided preponderance of the testimony is, we think, the other way, and supports the defense that defendant took the property in good faith, under an honest belief that it belonged to him.

There are no questions of law presented by the record that need be discussed. Because the verdict is not supported by the evidence the judgment is reversed and the cause is remanded.

Reversed and remanded.

Opinion delivered June 27, 1884.