Sheppard v. State ( 1950 )

ON MOTION FOR REHEARING.

GRAVES, Judge.

Appellant complains of certain errors in our statement of the facts in the original opinion.

The keeper of this head of cattle alleged to have been stolen saw appellant near the pasture where this head of cattle was located prior to its being missed. Prior to June 3rd, he looked for such animal in the pasture where it and some others were located and found it, together with six others, to be missing. On June 3rd, appellant sold a Jersey heifer, identified as the missing animal, in Taylor, in Williamson County, to Mr. Lawrence. Immediately before the animal was missed, it was in Milam County in the Joe How pasture, and same was delivered to the purchaser in Williamson County on the following day.

There are other claimed inconsistencies in our orginal opinion relative to certain location of the residence of appellant, as well as the person claiming a loss of this animal, but such do not in anyway affect the final disposition of this cause, and are but mere constructions on the effect of the stated facts. The location of this animal at the time when it was taken was required by the court’s charge to have been in Milam County, and the jury was properly instructed to acquit appellant unless they found such offense was committed in Milam County. Regardless of what county appellant lived in, the testimony evidences that the animal disappeared from a location that was in Milam County. Venue need not be proved beyond a reasonable doubt. When these cattle were last seen in their accustomed pasture, they were in Milam County. On the next day appellant sold one of them in Taylor, in Williamson County. We think the jury had the right to say that this animal was taken from its accustomed place in the How pasture in Milam County.

We think the original opinion has properly disposed of this matter, and the motion will be overruled.