This is an indictment for unlawfully marking and branding cattle, and is founded upon art. 767 of the Penal Code. To constitute the offence attempted to be charged by the indictment, the act must be done “ without the consent of the owner,” and “ with intent to defraud.” For aught that appears from this indictment, the defendant may have been authorized by the owner of the calf to brand it. That he was not, is a material allegation in charging the offence, and should, therefore, have been stated.
The intention to defraud is the gist of the offence, and should also have been charged. (See Code Crim., Proc. art. 399.) The judgment is affirmed.
Judgment affirmed.