Ramirez v. State

Appellant was convicted of theft of one head of cattle and assessed a penalty of two years in the penitentiary.

The principal grounds for the appeal are based on the contention that the indictment does not describe the head of cattle involved as to the age, color, brand or otherwise. This question has frequently been before our court and it is the consistent holding that an indictment for the theft of cattle need not describe the cattle stolen. (2 Texas Jurisprudence, page 925, section 156).

The animal described by the witnesses in this case is referred to as a white calf, part Brahma and part Jersey. It has in part the brand of Charles E. Gooding and in part, the brand of appellant's father, admittedly placed there by the father. Appellant introduced no evidence. We consider the evidence is sufficient to support the conviction.

Several bills of exception complain of the introduction of evidence and these are based on the contention that the indictment is insufficient. Having held to the contrary it follows that all bills of exception complaining of the introduction of evidence will be over-ruled.

Bill of Exception No. 5 makes the contention that there is a variance in the evidence. To some extent there is, but this was a matter for the jury's consideration and they determined it against appellant. Had there been a variance between the evidence and the allegation, a question of law would have been presented for this court to pass upon.

Finding no error, the judgment of the trial court is affirmed.

ON MOTION FOR REHEARING.