In this case the appellant has filed a motion for rehearing, the first ground of which is, the court erred in holding that the trial court did not err in admitting in evidence the record of the brand of David Middleton, (1) because the record of said brand failed to state on what part of the animal the brand was placed; (2) because the brand recorded showed that David Middleton was using and claiming more than one brand. We will discuss the ground first, alleging that he erred in admitting the brand because it was not stated in the record on what part of the animal the brand was placed. We must first remember that under the general rules of evidence, that an animal was branded in a given brand and that a named person was the owner of that brand, is admissible in evidence unless prohibited by statute. It does not take a statute to make brands and marks on animals admissible in evidence — they are so by virtue of the rules governing evidence, and it has been held that cattle branded with the brand of the prosecuting witness is some evidence of his ownership. Underhill on Crim. Ev., 297; State v. Wolfley, 75 Kan. 406; People v. *Page 58 Romero, 107 Pac. Rep., 709. And it has also been held that the State may prove that an unrecorded brand was used for years by the party claiming ownership. (Underhill, section 297; 91 Pac. Rep., 731.) And if brands and marks are admissible in the absence of a statute, then those provisions of the law of 1874 and 1876, which render inadmissible records of a brand unless the record shows on what part of the animal the brand is placed, has no application to those counties not under the operation of that law, and it is unquestioned that this law is not now and has not been in force in Liberty County since 1879, when this case was tried in 1911. It being admitted that the statute referred to has not been in force in Liberty County for the past thirty years, we do not see what force and effect it could have in the trial of a case in Liberty County. Its provisions are applicable alone to those counties in which the provisions of the inspection law of 1874 and 1876 are in effect. This Act of 1874 was first passed on, so far as we have been able to ascertain, in the case of Beyman v. Black, 47 Tex. 558, and it was held constitutional but applicable alone to the counties not exempted therefrom, and as at the time of its passage Liberty County was exempted, it did not become effective in that county in March, 1874.
We do not think that the Act of April 28, 1874, wherein it was attempted to place Liberty County under the provisions of the Act of March 3d can by any construction be termed a repealing statute, and, therefore, deem it unnecessary to discuss the authorities cited by appellant showing that the Legislature has the right to repeal without republishing the entire section or law, for that is certainly the law. This was not undertaken to repeal the law or any portion thereof where it was in force, but to put the law in force where it had not theretofore been in force, and in consequence would be an amendment to the law.
In appellant's motion for a new trial he calls our attention to other Acts of the Fourteenth Legislature, claiming that these put Liberty County under the operation of the Act of March, 1874, and this is probably true. Without discussing these Acts, it is clear that the Acts of the Sixteenth Legislature, in chapter 30, passed April 22, 1879, exempted Liberty County from the operation of the law, and that it has been exempt ever since, and was exempt at the date of this trial. It is also manifest that if the brand was not properly recorded in 1875, that by the Act of August 26, 1876, chapter CLXV, sections 22 and 23, the record was rendered valid, for by it, it was provided:
"Section 22. No person owning and claiming stock shall, in original marking and branding animals, make use of more than one mark and brand; provided, that any person may own and possess animals in many marks and brands, the same having been by him acquired by purchase, and bills of sale in writing, properly acknowledged from the previous owner or owners, or his or their legally constituted agent, shall be sufficient evidence of such purchase; but the increase of such *Page 59 animals, or of any animals counter branded by such person from other stocks of cattle owned by him, and all animals so counter branded, shall be branded or counter branded by one and the same brand; and when marked by such person, shall be marked in one and the same mark.
"Section 23. The clerk of the County Court in each county shalltranscribe the list of all recorded marks and brands in hiscounty, and revise the same. Such revised list shall be written in a well bound book, kept for that purpose only, and shall be arranged as follows, viz.: All brands of the letter class shall be placed in alphabetical order, following which shall be the numeral, character and device brands, in the order of the date of their registration. Opposite each brand shall be stated the marks corresponding to said brand, the name of the owner of the brand, his place of residence; if the same be sold, the name of the person to whom sold and his residence, the date of registration of the brands and marks, or particulars relating thereto. Before each brand shall be placed its number, commencing at one for the first brand on the revised list; and the name of the owner of each brand shall be indexed, reference being had in such index to the list number of the brand or brands of such owner; and all new marks and brands placed on record shall be immediately recorded and indexed in said book, which shall at all times be open to the inspection of all persons; provided, that the provisions of this section shall apply only to counties in which the work of transcribing the records has not already been done in accordance with law."
There is no provision that the "part of the animal on which brand is placed" shall be transcribed, and thirty-four years after that time, in the absence of any proof to the contrary, we must presume that the clerk complied with this law; and the reason why it appears that David Middleton had more than one brand appear of record is because of purchases made by him. And the fact that more than one brand does appear is evidence of nothing more than he had perhaps purchased certain marks and brands. The evidence conclusively shows that in originally marking and branding he used only the brand, and has done so continually since that date. And if this record introduced is the transcribed record provided for by this article of the statute, it would properly be of record, and being legally of record, when Liberty County was exempted from the operation of what was known as the inspection laws of 1874 and 1876, by Act of the Legislature in 1879, the provisions of those laws requiring that brand record should show on what part of the animal the brand was placed, to be admissible in testimony as evidence of ownership, was and is no longer in force in that county, and the evidence in this case was admissible, as the theft was alleged to have occurred and the trial had about thirty years after Liberty County was exempted from the operation of those laws. Stock laws, like our prohibitory laws, are only in force in those counties where it is so provided by law.
As to the second clause, that David Middleton had more than one *Page 60 brand of record, it need not be discussed, as section 22 of the Act herein above copied authorized it when one purchased cattle; the only limitation was that in originally marking and branding a person should not use more than one brand. A.D. Middleton testified that his father had purchased several brands, but that he never did use but one in originally branding cattle and that was the brand. There is no evidence in this case that David Middleton or A.D. Middleton ever used more than one brand in originally branding their cattle; and, therefore, we do not deem it necessary to discuss those cases where more than one brand was shown to have been used in originally branding cattle.
The other questions raised in appellant's motion for rehearing were so thoroughly discussed in the original opinion we do not deem it necessary to do so again, but only add where a person is on trial and proof that he has been or is charged with other offenses is admitted, it is the better practice to instruct the jury as to the purposes for which it was admitted, but if it is not done, then the question arises: was the testimony such that could have been used for any other purpose than as it might affect the credibility of the witness, and if not, a failure to so charge will not present reversible error. In this case the court limited the consideration of the jury alone to whether or not the defendant was guilty of the theft of the black beef steer described by the witnesses, and under such circumstances the failure to limit the testimony would not present reversible error. Moseley v. State, 36 Tex.Crim. Rep., and Carroll v. State, 58 S.W. Rep., 340.
The motion for rehearing is overruled.
Overruled.