Two points are raised in appellant's motion, viz: That a variance is shown between the ownership alleged in the indictment and that appearing in the testimony; also that we erred in holding the evidence sufficient to sustain our conclusion that the alleged stolen animal was alive when taken.
Re-examination of the record confirms us in our belief that the ownership of 'the calf in question was properly alleged, and sustained. Nothing in the testimony supports the conclusion that the Mexican Marukle had the care, control and management of the cattle in the pasture leased by Moore, and, — according to his testimony, — in his care control and management. Hartman v. State, 85 Tex.Crim. Rep., 213 S.W. 936.
Mr. Moore said he took the calf in question with its mother to the pasture some twenty days before appellant was discovered in the pasture in the act of skinning said calf, which gave every evidence of having been recently killed. Appellant was discovered in the act, and when asked what he was doing said he was killing a beef, as stated in our original opinion. The cow, the mother of the calf, was later observed near by. Witnesses who went to the place said they found where a calf had been killed. They spoke of its entrails, and said they found under its entrails a cartridge shell. Blood was on the clothing of appellant in a number of places. His knife had on it, blood and hair which corresponded with that of the calf. These matters are set out in our original opinion. It would be so altogether improbable that appellant would skin a calf which he found dead and appropriate a hind and front quarter of the meat, and that it could not have been long dead if his act of skinning it blooded his knife and his clothes.
We are constrained to overrule the motion for rehearing.
Overruled. *Page 626