Appellant moves for a rehearing. If we properly understand this record appellant's motion appears to be predicated not on the lack of proof that the stolen pig was the property of Mrs. Ruff at the time it was stolen, but upon a complaint that there was no explanation of how it became her property. The record is silent as to how or when Mrs. Ruff acquired the sow that was the mother of the stolen pig. This sow is mentioned twice in the record, each time by Mrs. Ruff. In the first paragraph of her cross-examination she testified: "I owned the mother of the pig. The mother of the pig was not raised on our ranch, but the pig was." Again, on re-direct examination, Mrs. Ruff swore: "The mother of this pig that was taken is my hog, she belonged to me." As to the ownership of the stolen pig Mrs. Ruff swore: "On the morning of the 15th of June, 1933, I had fourteen head of hogs * * * They were just pigs and would weigh something like fifty or sixty pounds apiece. I had fed them in the pen that morning, and they were all there. * * * That night when I fed the hogs I counted them and I only had thirteen. * * * That was my hog."
Bill of exception number two shows the following: Mrs. Ruff was asked: "Who did this hog belong to?" Appellant's attorney, in the presence of the witness and the court, objected and said, "We object to that as calling for an opinion and conclusion on the law of ownership." The State's attorney said: "She can testify if she knows who it belongs to." Defense counsel also further objected and said: "She can tell the facts and let the court and the jury say who the hog belongs to." The State's attorney then asked the witness the question: "Was thishog your property, or was it yours and your husband?" The witness answered: "No, sir, it was mine." "Q. It was your hog?" "A. Yes, sir."
This bill bears the following qualification: "It must be apparent that had defendant's counsel pursued his cross-examination of the fact of the birth of such pig before the acquisition of its mother in which case it would have been separate property or to the fact of its birth after the acquisition of its mother in which case it would have been community property. *Page 370 Defendant's counsel omitted to make such inquiry, and thereby failed to disprove Irene Ruff's ownership of the alleged stolen pig as her separate property."
When Mr. Ruff took the stand he swore on direct-examination: "On or about the 15th of June, 1933, my wife owned some hogs out there." On cross-examination no questions were asked. The witness Walker testified that appellant told him he had killed one of "old lady Ruff's" shoats over there, and later repeated in the presence of the wife of witness that it was "old lady Ruff's" hog. The above is all the record on the question of separate or community ownership.
There can be no dispute of the fact that by gift from the husband of his interest in community property to the wife, such property could become her separate property. The Supreme Court of this State has so said in many cases. Sorenson v. Bank,121 Tex. 479; Cauble v. Refining Co., 115 Tex. 1 [115 Tex. 1]; Cox v. Miller, 54 Tex. 16, and authorities cited. This court has also so said in a recent theft case. Arp v. State, 70 S.W.2d 997.
Clearly the pig in question was owned by one or both of these two persons. No other person had any interest whatever in the animal. These two persons were both grown and mature citizens. They both testified. It would be an unwarranted conclusion for this court to say that they intentionally falsified, or that they did not know what they affirmed under oath; namely; that on June 15, 1933, this pig was the property of Mrs. Ruff. No showing appears of curtailment of appellant's right of cross-examination of either of said witnesses in order to draw out the details of how the pig became the property of Mrs. Ruff.
This court has held in many cases that the owner of alleged stolen property may give parol testimony as to its ownership, and it is likely that resort to such proof of ownership is had in a large majority of theft cases. It would be most novel to here state and lay down as a rule that when all parties who may have owned interests in a specific property have sworn in open court that its ownership is in A on a date in question, that a person convicted of the theft of such property — not defending on the ground that he owned any interest therein, or had been given any right to take same by someone claiming an interest — may have his case reversed on the proposition that said parties did not know what they were talking about, and that this court should assume that they did not so know, and that they swore what was not true. We can not agree *Page 371 that appellant is now entitled to have us grant his rehearing and reverse this case simply because Mr. and Mrs. Ruff did not explain how the pig became the property of Mrs. Ruff.
This court must give effect to Mrs. Ruff's declaration that the pig was her property and not that of her husband and herself. Such ownership — when it could legally come about in more ways than one — when affirmed to exist by both Mrs. Ruff and her husband, must stand as far as this court is concerned.
If it had been developed that Mrs. Ruff was claiming ownership in the stolen pig solely because its mother was her separate property, the pig having been born after coverture of Mr. and Mrs. Ruff, the law would fix the status of the pig as community property, and we would have a different question to deal with.
But, as we understand the record, the motion for rehearing is overruled.
Overruled.