ON MOTION FOR REHEARING.
LATTIMORE, Judge.We have again gone over this case in the light of the urgent and vigorous motion for rehearing filed by appellant. Doubtless the facts could have been more closely connected so as to have made more positive the identity of the hogs seen in appellant’s possession at Beaumont on January 29, 1935, as those of Mr. Fuller, the alleged owner, but we think facts sufficient to justify the jury’s conclusion that they were the stolen hogs were put before them. Appellant lived a few miles from Fuller in Polk County. On the morning of January 29, 1935, appellant went to the city abbatoir at Beaumont with fourteen hogs in his truck, the ears of all, or all but one, of which were freshly marked or the old marks mutilated. Appellant was there arrested and put in jail. A constable and a deputy sheriff were together in the transaction. The constable testified that he delivered these same hogs to the sheriff of Tyler County, whose county seat we know to be Woodville. The sheriff of Tyler County testified that he went to Beaumont and got from the sheriff of Jefferson County fourteen hogs, which he took to Woodville and put in the pound pen; that Mr. Fuller came to Woodville, saw these same hogs, and identified three of them. Mr. Fuller swore that he went to Woodville and identified as his three of the fourteen hogs in the pound pen, which he lost about January 29th. He testified that Mr. Holliday brought those hogs to Corrigan in Polk County where he, Fuller, got them back. Purvis swore that he and Holliday hauled from Woodville to Corrigan fourteen hogs which they got at Woodville by permission of the sheriff and which at Corrigan they put in Simmonds’ pen. Magee swore that he looked at some hogs in Simmonds’ pen at Corrigan on or about January 29th and identified three of them as belonging to Fuller. Appellant was convicted for the theft of one hog, the property of Fuller.
Appellant also insists that the charge of the court with reference to the fact that he had been theretofore convicted of theft in 1932, was erroneous and did not present the law correctly. We have again gone over this matter and are not able to agree with appellant. The court in one paragraph of his charge told the jury that if they believed from the evidence beyond a reasonable doubt that Jettie Smith did fraudulently *476lake one hog from the possession of Fuller without his consent, with intent to deprive Fuller of the value of the same, and to appropriate it to the use and benefit of the said Smith, and that the said Smith is the same party who was convicted of a felony of the same nature, to-wit: theft of cattle in 1932, as alleged, in Polk County, Texas, and that the conviction in 1932 became final, and that after the same became final he committed the offense of the theft of a hog from Fuller, as alleged, then they should find him guilty. We see no possible fault to find with this method of submission, and the only complaint that could be made of it is that the court might have separated the two things and put them in separate paragraphs, but as we view the record the jury were told that they would have to believe beyond a reasonable doubt that appellant had, at a time prior to the commission of the instant theft, been convicted of the other theft, and that it had become final before the instant theft was committed, before they could find him guilty. We do not think the charge given ambiguous, or that the two parts of said paragraph are inconsistent with each other, or in any way in conflict. Certainly it can not be contended that the giving of said paragraph singled out or laid undue emphasis upon the fact of appellant’s former conviction. It required the jury to find beyond a reasonable doubt that he had been convicted in 1932, and that such conviction became final. This was one of the issuable facts in this case, and the instruction regarding same is believed by us to be correct.
Not being able to agree with appellant’s contentions, the motion for rehearing is overruled.
Overruled.
Morrow, P. J., absent.