Appellant was convicted of theft of cattle, and his punishment assessed at confinement in the penitentiary for a
term of two years, and prosecutes this appeal. On the trial the State offered the following paper in evidence, to wit:
"The State of Texas, County of Jack. Be it remembered that on the 13th day of February, 1882, J.S. Robertson of Jack County, Texas, had his mark and brand recorded in the clerk's office of said county, as follows, to wit:
MARK. BRAND. LOCATION OF BRAND.
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| | Left Side and Hip.
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To certify which I hereunto sign my name and affix my official seal, this the 20th day of July, 1900. C.M. Whipp, County Clerk, Jack County, Texas."
This was offered for the purpose of showing ownership of the cattle alleged to have been stolen in J.S. Robertson. Other proof in the case shows that Mon Garrison was the special owner in control of the cattle for said Robertson. Defendant objected to this, because the evidence for the state all showed that the animal claimed to have been stolen was not branded with said Robertson's brand, but was branded (1) All the witnesses who describe the brand on the alleged stolen animal, describe it as (2) Because it was not a copy of any brand of cattle, and because the same failed to show the date of record of the same. (3) Because the same upon its face is not a certified copy of any record of the county clerk's office of Jack County, but a mere certificate of said clerk as to facts, and therefore not admissible in evidence." In the opinion of the writer, the certificate attached was not sufficient to authorize the introduction of the record brand of Robertson. The certificate merely states, as a fact, that on the 14th day of February, J.S. Robertson had the following brand recorded in the clerk's office of Jack County, then gives the brand; whereas the certificate should have shown that the brand as given was a copy of the brand of said J.S. Robertson as it appeared from the books for recording brands in said Jack County. Rev. Stats., art. 2306; Howard v. Russell, 75 Tex. 171; Fisher v. Ulman, 3 Texas Civ. App. 322[3 Tex. Civ. App. 322]; 1 Greenl. on Ev., secs. 485, 498, and notes. A majority of the court, however, believe that the certificate was sufficient to render the paper admissible, and so hold. The certificate of the brand being admissible in evidence, then other testimony to reconcile and explain the conflict between the brand in the purported certificate and that actually placed on the animal was admissible, that is, it was admissible to show how the particular brand on the alleged stolen animal came to be placed there instead of the recorded brand. Harwell v. State, 22 Texas Crim. App., 251. The court gave the following instruction to the jury: "Upon the question of ownership, you are instructed that a recorded mark and brand is evidence of ownership of the animal upon which it is placed. The State has introduced a certified copy of the record of the brand and mark in evidence, which you may take into consideration together with all the facts and circumstances in evidence
before you, if any, and then, if you believe beyond a reasonable doubt that the animals in question were, at the time of the alleged offense, the property of Mon Garrison, as owner or special owner, then the allegation of ownership is sufficiently proven." This was objected to by appellant on the ground that the same was upon the weight of the testimony and was calculated to impress the jury that, in the court's opinion, the allegation of ownership had been proven; and it further assumed, that the alleged stolen animal was branded with said If said testimony was admissible (and the court so held), then it was enough to leave the jury to determine the ownership from all the evidence in the case, without calling the jury's special attention to any particular part of the testimony. The brand evidently, which was shown to have been placed on the animal, was not the brand as shown by the purported record, but a different brand; and being a different brand could only be used as any other flesh mark, for the identification of the animal, and could not be used as evidence of ownership, under the statute with reference to recorded brands, and, under the charge as given, the jury might have felt authorized to regard the brand in some way as proof of ownership. We would observe here, lest there be some misapprehension, that, while the evidence was admissible with reference to the owner's recorded brand and the brand which the testimony tended to show was on the animal, all this testimony was admissible, not for the purpose of showing ownership under a recorded brand, because the brand as shown on the animal was not the recorded brand of the prosecutor, but same could be used as any other flesh mark, for the purpose of establishing the identity of the animal, and thus aiding, as a circumstance, in establishing the ownership of the same. To illustrate, if A., a merchant, had lost a brown coat, with A.'s distinctive price mark thereon, out of his stock by theft, and B. was subsequently, recently thereafter, found in possession of a coat of the same color and character, this would be some evidence of identity, and so tend to establish ownership. If, in addition to this, the price mark of A. was found on the coat, and it was shown that no other person in that community used such a price mark, these would be strong circumstances identifying the coat as the one stolen from A. While there is no statute, as in the case of the brand of cattle, making the price mark evidence of ownership, still these facts, with other circumstances, might constitute plenary proof of identity, and thus establish ownership in A. And so, in this instance, the brand constituting a distinctive and peculiar flesh mark, together with the color of the cow lost being of the same color and character as that found in the possession of appellant, these, with other circumstances, might serve to identify the animal as the one alleged to have been stolen, and thus establish the ownership. However, as stated before, we do not believe the court should have referred to the brand as was done in the charge given.
If it was referred to at all, the jury should have been instructed that the brand on the alleged stolen animal, being different from the recorded brand of the owner, did not constitute evidence of ownership, and they could only look to the same as any other flesh mark which might serve to identify the animal. The judgment is accordingly reversed and the cause remanded.
Reversed and remanded.