Davis v. State

Willson, J.

Appellant was convicted of altering a brand upon a cow, not his own property, and without the consent of the owner, and with intent to defraud. We think the indictment is a good one, though it is inartistically drawn. It contains all essential averments of the facts which constitute the offense, as defined by Article 760 of the Penal Code.

The indictment particularly describes the brand which is charged to have been altered, and then describes the brand as it appeared after the alleged alteration. It is conclusively shown by the evidence that the altered brand, as alleged in the indictment, was very different from the alleged altered brand as found upon the cow. The court charged the jury upon this matter, in substance, that, as the indictment alleged the particular mode of the alteration of the brand, the alteration must be proved as averred, or they must acquit the defendant. This charge, we think, was correct. The allegation as to alteration of the brand was a necessary one, and the alteration set out in the indictment, while, perhaps, it was set out with unnecessary particularity, was descriptive of the offense of alteration, and must be proved as alleged. (Warrington v. The State, 1 Texas Ct. App., 168, and authorities there cited.) The defendant, in his motion for a new trial, made this variance one of the grounds of his motion. We think the verdict of the jury, in this respect, was contrary to the charge of the court, and contrary to the evidence, and that the court erred in refusing to set aside the verdict and grant the defendant a new trial.

We are also of the opinion that the evidence, as presented to us in the record, is in other respects insufficient to support the verdict of the jury. The judgment is reversed and the cause remanded.

Reversed and remanded.

Opinion delivered November 15, 1882.