Appellant was convicted of theft of cattle, and prosecutes this appeal.
On the trial his defense was an alibi, and that issue was submitted to the jury in a way that appellant does not complain. The only contention he makes on appeal is that the court erred in failing to charge on circumstantial evidence. On the trial of the case he asked no charge on circumstantial evidence, but did request three other special charges, his first complaint of the failure of the court to so charge the jury, being made in his motion for new trial, and that is the sole ground in the motion. However, under the law at the time of this trial, appellant had a right to complain in the motion for new trial of any omission in the charge or failure to charge all the law applicable to the case, and if the error was such as was calculated to injure the rights of the defendant, we should reverse the case, but in the absence of any requested charge, if the omission in the charge was such as that it was only not calculated to injure his rights, but in fact no injury could occur by reason thereof, then, under the plain letter of the law, we would have no right to reverse. (Art. 743.) So, if by any construction of the testimony, it should be held that a charge on circumstantial evidence should have been given, yet under the charge of the court as given, such omission would not present reversible error. In addition to relying on his plea of guilty, appellant made a definite, specific defense, — an alibi. That was presented to the jury in a manner frequently approved by this court, and the correctness of such charge is not questioned by appellant. They were required to find such defense untrue beyond a reasonable doubt, or they were instructed to acquit him. And were instructed that before they would be authorized to convict, they must find beyond a reasonable doubt that appellant fraudulently took from the possession of J.M. Jackson one head of cattle, with the intent to deprive the owner of the value thereof and with the intent to appropriate same to his own use and benefit before they would be authorized to convict him.
Again, appellant testified that John Law had some cattle running in an adjoining pasture, and while no testimony was offered that any of *Page 170 Law's cattle had ever gotten in the Matador pasture (the pasture out of which the calf was taken), yet the court instructed the jury:
"If you find and believe from the evidence that the one head of cattle alleged to have been stolen in the indictment in this case was the property of John Law, or if you have a reasonable doubt as to this you will find the defendant not guilty."
So we would hold, as before stated, if by any construction of the testimony, it could be held that a charge on circumstantial evidence would have been appropriate, yet the failure to so charge would not present reversible error, for every defensive theory was affirmatively presented, and the jury instructed that they must find that he took Jackson's cattle, beyond a reasonable doubt, or he would not be guilty.
But we do not think a charge on circumstantial evidence was called for under the evidence; however, as our Presiding Judge is of the contrary opinion, and while it may make this opinion rather lengthy, yet we have decided to state a brief synopsis of the testimony. John Southworth testified the Matador Cattle Company sent him to the pasture to keep a watch for cattle thieves; that in this pasture was a hill, and on Saturday evening, March 16th, he staked his horse under the hill and climbed to the top of the hill, which gave him a view of the surrounding country; that he had a pair of field glasses, and late Saturday evening he saw appellant and John Law ride up, pull the staples out of the fence and enter the pasture of the Matador Cattle Company; that they separated a yearling calf from the remainder of a bunch of cattle, roped it and drove it out of the Matador pasture and into appellant's pasture; that they drove it to a certain point in a canyon where they seemed to again rope it. He then left the hill, notified the employes of the Matador Company, instructing them where to meet him, and the sheriff, and then went after the sheriff, returned and carried the sheriff to the point where he claimed he saw appellant and Law rope the calf in the Matador pasture. Tucker, Shaw and Lair joined them at this point, and they traced the calf's tracks and horse tracks to the point in the fence where the horses and calf had gone from the Matador pasture into the Ballard pasture, and he says appellant and Law were coming up out of the canyon where he had seen them drive the calf the evening before; that appellant was riding a horse and Law was driving a hack; the testimony shows this hack belonged to appellant; he says appellant and Law, as they came out of the canyon, separated, and he and the sheriff went after them, while the others went to the place where he had seen them drive the yearling calf the evening before. Those who went to this point say they "found the head and paunch. This beef was not quite a year old. We found the hide. It corresponded all right with the animal," Southworth says, he "had seen them driving the day before. We found a hide and head and five feet there. The fifth foot was older than the other feet. Four of the feet correspond all right with the hide. The head corresponded all right. The right flank and the right hind leg of the hide was cut off, and part of the right neck was cut off, and the *Page 171 tail was cut off. The Matador Land and Cattle Company's cattle have a brand on the thigh and on the neck. It is `V' right low down on the thigh. There is a tally mark on the neck. It would have been `1' on that calf. The right hind leg was cut off. That is the part that the `V' was on. The right side of the neck was cut off, that is, the part of the neck that had the brand on it. We never found those two parts, though we searched for them. It was fresh, paunch, feet, head and hide, not more than twelve or fifteen hours since it was killed. It was still warm. The blood on the ground was just beginning to cake a little. . . . There were no ears on there, they had cut the ears off, we searched for the ears and found one. The right ear. The mark of the Matador Land and Cattle Company is crop the right. The ear we found showed crop the right. It was cut in two pieces. We never found the other ear."
It is shown by the record that at the point where Southworth says he saw them drive a yearling out of the Matador pasture to, they found one butchered; that the hide corresponded with the hide of the one appellant and Law drove out of the Matador pasture; that the ears were cut off, but they found an ear near by that fitted the hide; this ear was in the Matador mark; that the points on the hide where the Matador brands were had been cut out of the hide, and the hide cut at no other point. All these facts are shown by the testimony of Tucker, Shaw, Lair in addition to Southworth's testimony. The sheriff says when he overtook Ballard he told him he had a beef paunch down there and wanted some explanation of it, when Ballard replied: "If you have it you had better stay with it." The sheriff says he then told appellant he would just take him, when appellant reached for his Winchester rifle. He then offered no other or further explanation. When Law was overtaken in appellant's hack he had a fresh beef in the hack covered with tow sacks. Many other incriminating facts are shown by the testimony in the record, but we do not deem it necessary to go further into detail. A taking is shown by positive testimony; it is shown by positive testimony that an animal was driven from the Matador pasture to a point in the canyon; it is shown by positive testimony that an animal was butchered at this point; it is shown by positive testimony that the hide of this animal corresponded with the animal taken by appellant and Law out of the Matador pasture; it is shown by positive testimony that this animal was marked in the Matador mark; the brand (if branded) having been cut out; it is shown by positive testimony that appellant and Law were seen to come from this point of the canyon with a beef in their hack. It is also shown by several witnesses that a calf of a Matador cow was missing on Monday morning; the cow ranging at the point where appellant and Law were seen to rope and drive this yearling out of the Matador pasture.
We do not think that under any construction of law this case can be said to be one depending wholly upon circumstantial evidence, especially in the light of this record where there is no testimony that appellant or *Page 172 Law ever had a head of cattle in the Matador pasture, or right to take one out of the Matador pasture. We have read the brief filed by the able counsel for appellant and the cases therein cited, but by reading them it will be seen that the facts in those cases are not similar to the facts in this and the Law case. With the rules of law as announced in those cases we concur, but the facts in this case do not bring the case within those rules. For a long citation of authorities so holding, see Branch's Criminal Law, section 203, and especially the last paragraph in this section.
The judgment is affirmed.
Affirmed.