The record having been perfected, the appeal is reinstated and the case considered on its merits.
Appellant lived with his father, Eustacio Montalvo, on a ranch, which adjoined a ranch belonging to Mr. Jones. The fences between the two ranches were in bad condition and Mr. Jones' cattle ranged in the pastures belonging to appellant's father. The Jones' cattle were in the custody, management, and control of one Walter F. Long, who had permission to enter the pastures of appellant's father at any time for the purpose of looking for his stock. In riding through the Montalvo pastures, Mr. Long had seen some calves tied to trees. Believing that these calves belonged to Mr. Jones, he turned a cow in the pasture for the purpose of finding out whether one of the calves belonged to her. He later made a further search of the pasture. He found the body of the cow in a thicket, it appearing that she had been recently killed. Near the place where the cow had been killed he found a calf tied to a tree. Officers having been notified went to the place where the cow was found and waited with Mr. Long for the purpose of detecting the offender. After remaining at the place for more than twenty-four hours, they saw appellant and another boy approaching in a wagon. Appellant and his companion drove to a point near the officers and loaded the calf in the wagon. Upon the officers making their presence known, appellant said to them: "You are just in time, we are gathering our cattle, we are marking and branding our cattle." One of the officers replied: "Yes, looks like you are handling somebody else's cattle — Mr. Jones' cattle." Upon being questioned by the officers, appellant stated that his companion had roped the cow and that he had knocked her in the head with a hatchet. He said: "When we were dragging these calves she was bawling too loud — making too much noise." One of the officers then said to appellant: "I guess you thought somebody might hear you from the road." To this appellant replied: "That is the reason I killed her, to get her out of the way." Going to the home of appellant's father, the officers found four or five calves in the lot. These calves were turned *Page 529 into Mr. Jones' pasture. The calf which appellant and his companion had loaded into the wagon belonged to the dead cow. The foregoing facts were elicited from state's witnesses by the district attorney. Appellant offered no testimony.
The indictment charged appellant with theft of one head of cattle belonging to Mr. Long. The state's attorney before this court concedes that the evidence is insufficient to show that appellant stole the cattle found in the lot at the home of his father. The only testimony touching the identification of the animals last mentioned was that they were taken from the lot and placed in Mr. Jones' pasture. No witness testified that they belonged to Mr. Jones. Appellant objected to the charge of the court for its failure to embrace an instruction to the effect that before he could be convicted the jury must believe beyond a reasonable doubt that he fraudulently took either the cow which was found dead, or the calf that appellant and his companion loaded into the wagon. This charge should have been given. Under the facts disclosed by the record the jury might have concluded that while appellant's explanation as to his connection with the cow and calf found in the pasture was true and showed that he was not guilty of the theft of said animals, yet nevertheless he was guilty of theft of the animals found in his father's lot.
Appellant's statement concerning the dead cow tended to show that he did not steal said animal. He said he killed her for the purpose of keeping her from interfering with him when he was rounding up the calves. As to the calf found in the vicinity of the cow, appellant stated to the officers when they made their presence known that he was rounding up his cattle. Hence it is seen that as to both animals appellant made an explanation as to his possession which tended to exculpate him. The charge of the court did no more than to define theft and advise the jury to convict appellant if they believed beyond a reasonable doubt that he stole one head of cattle, as charged in the indictment. No affirmative defenses were covered in the charge. The defensive issues raised by appellant's explanation should have been affirmatively submitted in the charge. See Hunt v. State, 89 Tex.Crim. Rep., 229 S.W. 869. Appellant objected to the charge for the failure to submit such issues.
The judgment is reversed and the cause remanded.
Reversed and remanded.
The foregoing opinion of the Commission of Appeals has been examined by the Judges of the Court of Criminal Appeals and approved by the Court. *Page 530
ON STATE'S MOTION FOR REHEARING.