Williams v. State , 26 Tex. Ct. App. 131 ( 1888 )

Willson, Judge.

In the indictment the ownership and possession of the alleged stolen- animal are averred to be in J. F. Skinner. It is shown by the evidence, conceding the animal to have been the property of said Skinner, that it, together with •other cattle belonging to said Skinner, had been placed in the care, management and under the control of one Tom Brewer, who had authority to, and who did, look after them, milk the ■cows and mark and brand the calves, the said Skinner being a resident of Lampasas county, while said cattle ranged in Liberty county at and near the residence of said Brewer. Said Brewer had exercised such care, management and control of «aid cattle for about four years prior to the time of the alleged theft.

Opinion delivered October 13, 1888.

Such being the proof, the allegation as to the possession of the animal was not sustained, for the possession was in Brewer and not in Skinner. The indictment should have alleged the ownership in Skinner and the possession in Brewer, or, it would have been sustained by the proof, had it alleged the ownership and possession both in Brewer. (Willson’s Cr. Stat., sec. 1258; Tinney v. The State, 24 Texas Ct. App., 112; Alexander v. The State, 24 Texas Ct. App., 126.)

The court instructed the jury erroneously upon the question of possession, and refused instructions requested by the defendant which should have been given; and because of such errors, and because of the variance between the allegation and the proof as to possession, the judgment is reversed and the. cause is remanded.

Reversed and remanded.