In his motion for rehearing appellant urges with much force that the trial court was in error in a charge given regarding the theft of cattle other than the one alleged in the indictment to have been stolen.
The objections to the court's charge were incorporated in the original transcript, but were in no way authenticated by the trial judge. However, by a supplemental transcript such authentication is shown, and at the time the original opinion was written such supplemental transcript must have escaped attention. In no other way can the omission to consider the serious *Page 506 question raised by the instruction complained of be accounted for.
The count of the indictment under which conviction was had alleged the theft of one head of cattle from V. M. Joiner, who was holding it for C. O. Edwards and Crawford O. Edwards, the owners. The State proved the theft of some cattle from one Brownfield, and also theft of cattle from the two Edwards other than the one alleged in the indictment. As held in the original opinion such evidence, under the facts, appears to have been admissible.
Regarding the theft of other cattle the court charged as follows:
"In this case the State has introduced evidence that other cattle than the one alleged to have been taken on or about the 18th day of December, 1935, as set out in the second count of the indictment, were taken at about the same time and place. You are instructed that you can only consider such testimony for the purpose for which it was admitted; that is, to establish the identity in developing the res gestae of the alleged offense or to prove the guilt of the accused by circumstances connected with the theft, if any, or to show the intent with which the defendant acted with respect to the property for the theft of which he is now on trial, and you will consider it for no other purpose, for you cannot convict the defendant for the theft of any property other than that named in the second count of the indictment."
Appellant in writing presented the following specific objection to said instruction: "The defendant further excepts and objects to the ninth paragraph of the Court's main charge wherein the Court instructs the jury that they can consider the testimony with reference to the theft of other cattle than those named in the indictment for the purpose 'to show the intent with which the defendant acted with respect to the property for the theft of which he is now on trial,' for the reason that said instruction is upon the weight of the evidence and is in fact an instruction to the jury that the defendant did act with respect to the property for the theft of which he is now on trial; and they are to consider such testimony for the purpose of determining the intent with which he so acted, and such instruction is extremely prejudicial to the rights of the defendant."
In Davis v. State, 87 Tex.Crim. Rep., 222 S.W. 236, a charge in the exact language employed in the present case was condemned as being on the weight of the evidence. The charge there, however, told the jury: "If you believe there is evidence *Page 507 tending to prove the theft of other property than that alleged in the indictment," etc., whereas, in the present case the court told the jury that: "In this case the State hasintroduced evidence that other cattle than the one alleged * * * in the indictment * * * were taken at about the same time and place," etc.
We quote from Branch's Ann. Tex. P. C., page 122: "Where defendant denies any criminal connection with other transactions introduced in evidence against him, the charge is on the weight of the evidence if it states that evidence has been introduced 'tending to prove another offense.' "
From page 123 we quote: "It is error to assume that other property was stolen, and to limit the effect of such assumption."
Many cases are noted by the author which support the quoted text.
Concededly not only the animal described in the indictment, but the others also were stolen by someone. One defense interposed was that appellant was not present at the time any of the cattle were taken, and the question of alibi was submitted to the jury. The instruction of the court that the jury could consider the other thefts "to show the intent with which the defendant acted with respect to the property for the theft of which he is now on trial" appears to be on the weight of the evidence in a case like this where appellant was denying connection with any of the property. Such a charge might have application in a case where accused admitted connection with the property for the theft of which he was on trial, but denied a criminal intent. However, where appellant denied any connection with the property alleged in the indictment to have been stolen and introduced witnesses to show that he was at some other place when the theft was committed it appears to have been improper for the court to tell the jury that the State had introduced evidence that other cattle had been taken, and that the jury could consider such evidence "to show the intent with which the defendant acted with respect to the property for the theft of which he is now on trial." The charge is subject to the criticism that it seems to assume that appellant was "acting" with regard to the animal charged to have been stolen.
We think the charge which required the jury to find want of consent of Joiner and the two Edwards "or either of them," while not strictly accurate, could not have injured appellant in view of the fact that the record shows all three of the parties testified and all denied having given consent to the taking.
For the error discussed we feel constrained to grant appellant's motion for rehearing, set aside the judgment of affirmance, *Page 508 and now direct that the judgment of the trial court be reversed and the cause remanded, and it is so ordered.
Reversed and remanded.
ON STATE'S MOTION FOR REHEARING.