The indictment charged appellant *Page 505 with the theft of a cow in one count, and in the second for altering the brand on the cow.
At the opening of the case the State elected to try for what is known in the record as the older cow, the facts developing there was a younger cow upon which the brand had also been altered. This, of course, designated the case and the animal upon which the trial should be predicated. The State's theory was that the cow belonged to the Matador Land and Cattle Co., which was under the supervision and control of Jackson, who was the alleged owner. Suffice it to say, with reference to the theory of the case, that the State relied upon the fact that the animal in question was the property of the Matador Land and Cattle Co., and that the brand had been altered on the cow so as to change the original brand to what was contended by the State was found on her at the time she was discovered in appellant's pasture. The theory of the defendant was, supported by his testimony, that he raised the cow; that she was his property, and that the cow never belonged to the Matador Land and Cattle Co. He claimed at the time the cattle were found in his pasture, when the officers and others were there, and during a conversation between himself and Robertson with reference to the matter, that the cow was his. The record shows Robertson testified: "I was walking along close to Cannon, Conner, and Ed Lisenby; we were coming along there, and there were two cows, an older cow and a heifer kept shying away from us, off to the left. They were west of us. I asked Cannon if these were his; he said, `Yes, all I see here in sight are mine.' I said, `That old cow, that heifer going off to the left, are those your cattle?' He says, `That is not an old cow, they are both heifers, they are both mine, I raised them both.'" The cattle were then put in a pen and examined, and under the State's theory and testimony the brand showed to have been changed from the original brand to what was on them. Appellant claimed it was the original brand, and that he put the brand on originally, and there was never any other brand on the animals except what he placed on them, and it was his brand. This is a sufficient statement out of this voluminous record of the facts, we think, to bring in review the issues necessary to be discussed.
The court charged the jury with reference to the possession of property recently stolen, and explanation given by appellant. The charge as given is practically that set out in Wheeler v. State, 34 Tex.Crim. Rep., which charge has been approved by this court as being sufficient when that issue is in the case. The objections urged to this charge were properly taken and verified. We are of opinion this charge should not have been given. The question of possession of recently stolen property and the consequent explanation is not in this case. The question here was directly at issue, whether it was the property of defendant or the property of the Matador Land and Cattle Co. He claimed it direct; such was his statement at the time when found in possession of it, and to sustain which he introduced evidence. So this case presents the issue, not of any explanation but of the right and title to the property. *Page 506 If it was his there could have been no theft. If it was not his and belonged to the Matador Land and Cattle Co., then the case was one of theft, or fraudulent altering of the brand. Mr. Branch in his Ann. P.C., on p. 1335, collates a great number of cases. The condensed statement of that author is as follows: "It is error to charge on the subject of reasonable explanation when defendant made no explanation of his possession, or when challenged as to the property he stated that he knew nothing about it or claimed it as his own." The authorities are collated by Mr. Branch, and can be found without burdening this opinion with listing them. The issue in the case, so far as the animal was concerned, on this phase of it, was that it was defendant's or it was the property of the Matador Land and Cattle Co. Appellant was entitled to a charge directly submitting the issue of his ownership and title to the property, unencumbered with the charge on explanation, and if believed by the jury to be true, or there was a reasonable doubt about it, they should acquit. The charge as given was an assumption of fact adverse to defendant. It is based upon the theory, first, that the property was stolen by someone, either by defendant himself, or by someone else from whom he received it. Appellant was denying this absolutely, and asserted ownership. The court was assuming against appellant that the property had been stolen and he had given an explanation of his possession when he had denied the theft, claimed ownership and had given no explanation of his possession. It is never correct to assume a fact adversely to appellant in charging the law of the case. The court was in error in giving the charge.
There is another proposition which we think is well taken. The court admitted evidence of another animal found at the same time as the one in question, and with the brand claimed by the State to have been altered. Objection was urged to the introduction of this testimony, and also to the charge of the court limiting the effect of such testimony to the intent of the defendant. We are of opinion that this evidence should not have been admitted. The intent was not an issue in the case from the viewpoint of the evidence. If appellant took the animal which was found in his possession and changed the brand on it, there could be no question as to his intent. If it was his there could be no question of intent, because it was his property. The intent in taking it was clearly fraudulent if it belonged to another party. If it was his there could be no fraudulent intent, and there was nothing to aid by the introduction of the evidence as to the other animal. He claimed to have put the original brand upon both animals and did not change the brand of the Matador Land and Cattle Co. They were both taken by the same right, under the same view, and by the same authority, that is ownership. If he was not the owner, the intent in taking the animals and changing the brand on them was clear and did not authorize evidence of extraneous crime to be introduced to show intent. The court in his charge instructed the jury that they could only consider this extraneous matter as bearing upon the intent of the defendant. We *Page 507 believe this was error. The taking and altering the brand on the second cow, if appellant did it, could not show any fraudulent intent on his part in taking the other, because if he took the other under the circumstances claimed by the State, there was no question of intent and nothing to elucidate and no additional testimony was required or authorized. If it was his property there could be no fraudulent intent.
For the reasons indicated the judgment will be reversed and the cause remanded.
Reversed and remanded.