Conviction is for theft of a hog, punishment being two years in the penitentiary.
Braun, the alleged owner of the animal had a number of hogs running on the range. He missed ten or twelve head. He secured the aid of Patterson, an officer, and they discovered where quite a bunch of hogs had been driven from the accustomed range to the Cude place, which at the time was vacant. From signs there it appeared the hogs had been penned and loaded in a wagon and truck, the tracks of the vehicles indicating the truck was loaded last. Braun's hogs were marked with a "swallow fork" in each ear. Patterson testified that they found in San Antonio at the stockyards ten hogs bearing Braun's mark. Some days later Braun found at the stockyards another hog bearing his mark. The state put in evidence appellant's written confession, in which he admitted that he and one Harrison drove to and penned on the Cude place eleven head of hogs which were in Braun's mark; that while Harrison watched the hogs appellant went and got his wagon in which ten head were loaded, one having escaped while appellant was gone after the wagon; that the ten head were taken to San Antonio by appellant, who sold them to the stockyards and gave one-half the money to Harrison; that a few days later the hog which had escaped came back to the Cude place and that he and Harrison penned it and loaded it in a truck belonging to appellant, who also took it to San Antonio, sold it and divided the money with Harrison.
The prosecution which resulted in this conviction seems to have been predicated on appellant's connection with the one hog last referred to. He interposed objection to proof relating to the ten hogs. The evidence was properly admitted. According to appellant's confession the last hog sold by him was taken into his and Harrison's possession at the time the other ten hogs were taken. If it escaped and went back into the constructive possession of the owner and was taken again by appellant the evidence of his former dealing with it was admissible. *Page 247 Appellant's confession showed a fraudulent taking. On the trial he claimed not to have had a fraudulent intent when he took possession of the hogs, but claimed he only intended to impound them. This issue was submitted to the jury. On the issue of intent appellant's connection with all the hogs on both occasions was properly shown. Lussport v. State, 80 Tex. Crim. 314; 190 S.W. 151; Simpson v. State, 81 Tex. Crim. 389,196 S.W. 835. For other collated authorities see Note 56 under Art. 703, Vernon's C. C. P., Vol. 2, and Sec. 2347, Branch's Ann. P. C.
We are of opinion the court committed no error in omitting to charge on circumstantial evidence. The gist of the offense of theft is the "fraudulent taking." This was shown by appellant's confession. The identity of the animal stolen as one which belonged to Braun was sufficiently shown by proof of the marking and surrounding facts. Because that may have become an issue it would not in our opinion under the facts of this case demand a charge on circumstantial evidence. Buntain v. State, 15 Tex.Crim. Rep.; Glover v. State, 46 Tex. Crim. 824; Davis v. State, 295 S.W. 608.
Finding no error in the record which demands a reversal, the judgment is affirmed.
Affirmed.
ON MOTION FOR REHEARING.