Appellant relies on Melton v. State (Texas Crim. App.),56 S.W. 67; Dawson v. State (Texas Crim. App.), 61 S.W. 469, and Clements v. State, 43 Tex.Crim. Rep., 66 S.W. 301, 303, as holding that to sustain a conviction for theft of property from an unknown owner, there must be proof in the record showing that said property had the status of belonging to some unknown *Page 575 owner prior to the time same was taken by or found in possession of the accused. We briefly analyze said cases:
In the Clements case, supra, the three calves alleged to have been stolen were brought by the accused to Brigman's pasture. Not a particle of testimony in the record supports the hypothesis that they were estrays or had ever been seen by any witness in the county or neighborhood of Brigman's pasture before they appeared in appellant's possession. To this extent the analogy between the facts in the Clements case and those in the instant case, is exact. Clements made statements as to who he got said calves from, which statements were shown by the State to be false. In this also, that case is like the instant case. The Clements case upon its facts, its reasoning and its conclusions, is authority against the appellant and not in his favor. The judgment in that case was affirmed upon proof that the name of the owner was unknown to the grand jury and at the time of trial, and upon proof further that the explanation of Clements and his claim of purchase were shown to be false. In the opinion in that case Judge Henderson states that upon authority of the Melton case, supra, and the Dawson case, supra, it was urged in behalf of the defense that in as much as there was no proof made that cattle were shown to be in that section belonging to an unknown owner, and no cattle were missed which belonged to an unknown owner, — the testimony was insufficient. The conclusion of Judge Henderson was adverse to this contention. He distinguishes the case about which he was writing from each of those referred to. We think the Melton case, supra, is easily different from both the Clements case and the instant case. The Melton case was reversed for the refusal of a charge that if at the time the accused killed the alleged stolen animal he believed it belonged to Youngblood, he should be acquitted. The proof in that case showed that Mr. Youngblood had authorized Melton to kill animals on the range belonging to him, and appellant testified that when he killed the alleged stolen animal he thought he was killing one of Youngblood's cattle. However, there are some expressions in the opinion in the Melton case referring to the failure of the State to "identify" the particular animal as belonging to an unknown owner, which we feel sure, from what was said by the same eminent judge in his opinion in the Clements case, written later, were intended only to mean that the State had failed to prove that this particular animal belonged to an unknown owner.
Judge Henderson, in the Clements case, distinguishes the Dawson case, supra, on the ground that same went off on the proposition that when the State alleged the ownership of the animal to be unknown, it was incumbent on the State to prove such allegation; also that when there was no evidence to show that the animals found in possession of the accused belonged to unknown owner, the conviction could not stand. In his opinion on rehearing in the Clements case, supra, Judge Henderson *Page 576 recognized that there were some things said in the Dawson case which were out of line, and he went further and said that if there be in the Dawson case, supra, any expressions indicating as the view of this court that the alleged stolen animal must, prior to the theft, be known as the property of some unknown owner, and identified as such, — such expressions are not the law, and any of same which do not harmonize with the holding in the Clements case, would be overruled. The final announcement in said opinion on rehearing in the Clements case is as follows:
"Now, whether the animal was known in the community at the time as an estray or an animal belonging to some unknown owner, and this was the animal alleged to have been stolen, as was the condition in Melton's case (Texas Crim. App.), 56 S.W. 67, or whether the animal shown to have been stolen was not previously known in the community, or on some account the State was not able to identify the animal as the property of any person, would make no difference. In either event, the State not being able to identify the property as belonging to a known owner, it would be the property of an unknown owner, and would be covered by our statute authorizing the allegation that it was the property of an unknown owner."
It follows that we do not agree with the appellant's contention that this case must be reversed because of what was said in the cases just discussed.
When the indictment charges the theft of property of an unknown owner, the question of variance arises if it be shown on the trial that the averment was made by the grand jury arbitrarily or without sufficient diligence to ascertain the name of the owner. If it appear from the evidence adduced upon the trial that in making the averment, the grand jury could, by reasonable diligence, have ascertained the name of the owner of the property, a variance developed. A variance will not result from the averment, however, when made after proper inquiry though on the trial the proof may show the name of the owner of the property. Jorasco v. State, 6 Texas App., 238; Jorasco v. State, 8 Texas App., 540; Hellums v. State, 55 Tex. Crim. 356,116 S.W. 590. In a trial for theft under an indictment charging that the owner of the alleged stolen property was unknown, it is deemed necessary to introduce such evidence as will justify the jury in concluding that in the respect mentioned the indictment speaks the truth as to the inability of the grand jury to know the owner and that in the county such cattle were stolen by the accused. See Wharton's Cr. Ev., 10th Ed., Vol. 1, Sec. 97; Underhill's Cr. Ev., 3rd Ed., Sec. 463; Jorasco v. State, supra. Under such an indictment proof of the guilt of the accused and the identity of the cattle may be made by circumstances; that is, by inferences from proven facts. The acts, conduct and declarations of the accused are competent evidence bearing upon the issues. See Wharton's *Page 577 Cr. Ev., Vol. 1, Sec. 748, p. 1492. In. Sec. 749, of the same text, it is said:
"The holding back of evidence may be used as a presumption of fact against the party who holds back such evidence in all cases in which it could be produced.
"While the accused in a criminal case may rely upon the presumption of innocence, and any failure on his part to offer evidence is not an admission of guilt, or even a presumption against him, still, where it appears that he has within his power evidence which is not available to the State, which would show the actual facts, his suppression of such evidence warrants the jury in drawing an inference that its production would be unfavorable to him."
From Burrill on Circumstantial Evidence, page 451, the following quotation is taken:
"There is no doubt that the mere fact of possession of stolen property, which has been satisfactorily identified, if both recent and exclusive, is, in itself, sufficient to raise a presumption strong enough, if unrebutted, to warrant the conviction of the possessor. But such presumption may be materially strengthened by accompanying circumstances, the most prominent of which will now be considered.
"1. Proximity of the person of the accused to the place from which the property was stolen, about the time of the larceny, is a strong corroborative circumstance of the concommitant-class.
"2. The concealment of the stolen property is a strong circumstance against the possessor. Under this head may be classed acts intended to destroy the identity of the property; such as the erasure of marks or names upon it, etc."
It has often been said that the killing of an animal with the intent to steal it is a sufficient taking of the animal. In Hall's case, 41 Tex.Crim. Rep., the accused was convicted of theft of two hogs. The court said:
"The hogs were killed out in the woods, out of the immediate custody of the owner. By the act of killing, under such circumstances, the defendant may fairly be held to have had the hogs under his control and in his possession."
In the present instance, the jury was warranted in finding the appellant's explanation of his possession of the animals a fabrication. Gray was prosecuted for the same offense and his case was affirmed. See Gray v. State, 116 Tex. Crim. 617,33 S.W.2d 457. There is no evidence found in the record which could have been interpreted by the jury as indicating that the appellant was the innocent receiver of animals stolen by some other person.
A rehearsal of the evidence is deemed unnecessary. It in substance appears in the original opinion. The conduct of the appellant and his *Page 578 alleged confederate Gray, as pointed out in the original opinion, was such as would justify the jury in concluding that after stealing the cattle, every tangible fact leading to their identity had been designedly obliterated by the appellant and Gray. Every means of making specific identification of the cattle by marks, brands or color, had been destroyed.
Finding nothing in the record warranting a reversal of the conviction, the motion for rehearing is overruled.
Overruled.
ON APPELLANT'S REQUEST FOR LEAVE TO FILE SECOND MOTION FOR REHEARING.