Appellant was convicted of the theft of one head of cattle, and his punishment assessed at confinement in the penitentiary for a term of two years, and he prosecutes this appeal.
The evidence on the part of the State tended to show that the alleged stolen animal was taken in November or December of 1896, or in January of 1897. The proof as to the ownership of the head of cattle in question in the prosecutor, E.P. Davis, consisted in the following facts: That said Davis lived in Throckmorton County; that he had a ranch of about 95,000 acres in Throckmorton and Young counties; that he owned a large number of cattle; and that he had several cattle brands, and, among others, gave the brand "6" on the left side, "6" on the left hip, mark crop off of right ear, and underbit in the left ear; that sometimes he had cattle to stray or go into Archer County. Five head of steer cattle *Page 326 bearing his said mark and brand were seen in the L.M. pasture, in Archer County, some year or two before the alleged theft. The particular head of cattle alleged to have been stolen was one of these, designated as a "brindle steer." In the full of 1896 it was shown that the brands and marks of at least two of said five head of steers, including the brindle one, had been changed by burning the "6" and making a "B" of it, and by placing a cross between the two "B's." The mark had been changed by cutting out the under bit in the left ear, and making an underslope thereof. The evidence abundantly showed that the brand of the brindle steer had been thus changed. The weight of the evidence was to the effect that the brand "6," instead of being on the left side of the animal, was on the left shoulder, though one or two witnesses state that the brand was just behind the left shoulder. The prosecutor testified that his mark and brand were as above stated, and that he had sold no cattle in that county. The testimony tended to show that appellant sold said brindle steer to Mathers and Routzahan in the latter part of 1896 or the early part of 1897, and that at that time the brand and mark had been changed, and the animal dehorned. Webb bought the animal from Routzahan, and he was cut out of his herd by direction of Chesher, who represented the cattle association. A number of circumstances were introduced in evidence showing fraud on the part of appellant. As proof of ownership, the State introduced a certified transcript of the registration of the mark and brand of Davis, the prosecutor, recorded in Archer County, on the 1st of March, 1898. The record shows as follows:
Certificate of Registration of Marks and Brands.
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No. Name of Owner. Place of Residence. Mark. Brand.
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833 Davis, E. P......... Throckmorton, Tex. . . . ??? 6
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Location of Brand. Date of Registration.
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Left side and left hip ............ March 1, 1898.
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The theory of the defense, which he supported by evidence, was to the effect that he bought the animal in question, with four others, from a stranger, who was driving a herd of three or four head through that county in the fall of 1896; that the animals then bore the mark and brand found on them when sold by appellant, to wit, "B" on left shoulder, cross on left side, and "B" on the left hip; and that they were also then dehorned. It seems to have been conceded on the trial that the brands had been changed by burning the "6's" into "B's." Appellant, however, testified that he did not discover the same at the time he bought them or afterwards.
Appellant objected to the introduction of the certified record of marks *Page 327 and brands of E.P. Davis — "First, because upon its face the mark and brand appeared to have been recorded after the commission of the alleged offense; second, because none of the cattle mentioned by any of the witnesses in the case as having ever been in the possession of the appellant ever had the two '6's' on them in the place described in the recorded brand; and, third, because there were other marks and brands on record, both in Archer and Throckmorton counties, Texas, purporting to be E.P. Davis' marks and brands. And in that connection he introduced a certified copy of the registration of marks and brands, showing that prosecutor gave other marks and brands."
The question as to the admissibility of a brand recorded after the date of the alleged theft has been before this court a number of times. See Priesmuth v. State, I Texas Crim. App., 481; Spinks v. State, 8 Texas Crim. App., 125; Coombes v. State, 17 Texas Crim. App., 266; Groom v. State, 23 Texas Crim. App., 87. These decisions appear to hold that such certificate of registration of brands, though recorded subsequent to the alleged theft, is admissible in evidence, not for the purpose in itself of proving ownership, but to be used as a circumstance, in connection with the other circumstances, to prove the identity of the alleged stolen animal. In other words, we understand the effect of the decisions to be that this certified copy can be offered, in connection with the other facts, merely to show a flesh mark on the animal in question. This being true, we can see no legitimate purpose in offering the recorded brand at all, as parol proof can be made of the certain flesh marks on the animal regardless of the record of the brands. From this point of view, we do not see what useful purpose the introduction of a subsequent recorded brand would serve in a case. However, we agree with the decisions to the effect that such subsequent record of the brands is no proof of title to property which had been previously stolen. Article 4930, Revised Civil Statutes, provides that "no brands, except such as are recorded by the officers named in this chapter, shall be recognized in law as any evidence of ownership of the cattle, horses, or mules upon which the same may be used." This statute would seem to construe itself, and to clearly convey the idea that an unrecorded brand shall not constitute evidence of ownership. Now, if the recorded brand shall be evidence of ownership, when must it be recorded? Obviously, it occurs to us, anterior to the alleged theft. The act of making a record of a brand is entirely ex parte. All that is required to be done by a person desiring to register his brand is to go to the clerk, and inform him what brand he wishes to record; and if it does not conflict with some recorded brand, and he then pays the clerk 25 cents, the registration is complete. If this could be done subsequent to the taking of cattle claimed by him, he would appear to be authorized by an ex parte act to constitute title in himself after the taking. He may never have used the brand before, but, subsequent to the taking, he could adopt the brand found on the animal, and by this means fabricate testimony of his ownership. We do not think this is permissible; and we held that the recording of his brand after the alleged taking of property *Page 328 claimed by him affords no proof of ownership, and his claim to the brand stands on no higher plane than parol evidence of the fact would furnish. We would not be understood as holding that a recorded brand prior to the taking constitutes indisputable evidence of title or ownership, but is merely prima facie proof thereof, subject to be rebutted. We do not hold, however, that the admission of the brand in evidence of E.P. Davis, recorded about a year after the alleged taking, would of itself constitute reversible error; but, under the circumstances of this case, it became absolutely necessary for the court to guard the jury as to the effect of this recorded brand; otherwise, they would be liable to regard it as proof of ownership in Davis of the head of cattle in question. Therefore, it was necessary for the court to give the special requested instructions of the appellant on this subject, said instructions being in line with the authorities above cited. Of course, if appellant bought said head of cattle after it had been stolen and the brand changed, the jury should have acquitted him of theft on this ground. But the theory of the State was that he had stolen the animal while it was branded in the alleged brand of the prosecutor, and that he afterwards changed said brand, so that the ownership of the animal was a very material issue on the trial, and this ownership could not be established by an unrecorded brand or a brand recorded after the date of the alleged taking; and, as this was the State's evidence of ownership, the jury should have been very carefully instructed on this point. We also think that inasmuch as the testimony tended strongly to show that the "6" was on the left shoulder, and not on the left side of the animal, the jury should have been instructed on this subject.
Appellant also contends, as a reason why said certified record of the marks and brands of Davis should not have been admitted in evidence, that the record of marks and brands in both Throckmorton and Archer counties showed that, said Davis has recorded several other marks and brands besides that given as being on the animal in question. The statutes on this subject appear to apprehend that no person shall use more than one brand; and it is further prescribed that his brand shall be recorded. See articles 4992 and 4923, Rev. Civ. Stats. To emphasize this, the Criminal Code makes it a penal offense for a person to use more than one brand. See article 932, Penal Code. Now, if a recorded brand only is evidence of ownership, and a party can use only one brand, this would negative the idea that he could use other brands. We note in this connection that article 4942, Revised Civil Statutes, authorizes persons to purchase the marks and brands of others by bill of sale, and authorizes such sale or transfer to be noted on the record of original marks and brands in the name of the vendee or purchaser. In such cases it would seem that one person can own a number of marks and brands by purchase, but in order to reconcile these articles, while he can purchase other marks and brands, he could use and keep up but one as his own. We do not know what may have been the object of the Legislature in authorizing a person to use but one brand, but, unquestionably, the Legislature *Page 329 has so enacted, and we know of no principle which would authorize us to hold such an act void. Hence the question arises in this case, what effect would the fact that Davis had a number of marks and brands recorded have on the use of one of said marks and brands as evidence of title in him? Would the fact that he had a number of brands recorded in a given county vitiate the use of the record of one of such marks and brands as evidence of title in him? We believe that this would be the effect of his having and using more than one recorded brand, and that said brands could be regarded as no more than flesh marks on the animals so branded, which could be used, not as evidence of ownership, in connection with the recorded brand, but simply as evidence to establish the identity of such animals. This, in connection with other proof, might, of course, show ownership.
On the trial, appellant did not, by any evidence, put his character in issue; yet the attorneys for the State, being private prosecutors, dwelt upon this matter. A bill of exceptions shows that F.E. Dycus stated in his opening argument before the jury as follows: "The, defendant is here with his friends on the outside of this bar. You should not consider that. You should try him just like you would try a boy who has been raised in the slum of the street, and knew nothing of a good life, but had been raised in crime. The defendant has friends here, and has friends in this county; but remember, gentlemen, that his neighbor Bill Mann and his neighbor Jim. Floyd were on the grand jury that found this indictment. They knew him. They were his neighbors, and they brought in the bill," — to which argument of counsel the defendant excepted as unfair and prejudicial, and requested the court to instruct the jury to disregard such argument. The court overruled the objection, and appellant excepted. And it is also shown that Carrigan, another private prosecutor, in the closing argument, stated, "If the defendant had a good character, why did he not bring his neighbors, here, and let them testify to his good character, and why were his brothers not placed upon the stand?" to which argument defendant objected, on the ground that the good character of the defendant had not been put in issue. Appellant also, by a written motion, requested the court to instruct the jury in regard to said argument. The court refused to do this. In explanation, the court says: "That, in their argument, counsel for the defendant stated to the jury that the defendant had never before been charged with a violation of law, so far as the record showed, and that his reputation must be good, for it had never been such as to subject him to a criminal prosecution, and the argument complained of was in direct answer to the argument of counsel for defendant." This, possibly, may have been sufficient justification so far as the remarks or Attorney Carrigan are concerned; but this did not justify the remarks of Attorney Dycus. These were made prior to any argument by the counsel for defendant. They were not authorized by anything in the record, and were calculated to prejudice appellant before the jury; especially that part with reference to what two members of the *Page 330 grand jury, the neighbors of appellant, had done with reference to bringing in the bill against appellant. If this matter had been offered in evidence, the court would have promptly excluded it. As it was not in evidence at all, and discussed before the jury, the least that the judge could have done was to promptly reprimand counsel, and to instruct the jury to wholly disregard said remarks. But this he failed to do. This, in our opinion, was error. The judgment is reversed and the cause remanded.
Reversed and remanded.
HURT, Presiding Judge, absent.