The offense is theft of hogs. The punishment assessed is confinement in the state penitentiary for a term of 4 years.
The record reflects that on or about the 12th day of December, 1947, appellant, his brother Ben Green, and a nephew, Homer Green, met in Saratoga and after drinking some whiskey, they drove out some five or six miles near where Cal Brown and appellant lived and there, in the woodland, killed five hogs belonging jointly to W. W. Minter and his deceased son. They loaded these hogs into their automobile and carried them to Beaumont to a tourist cabin occupied by Homer Green and his family where they dressed the hogs. However, before they had finished dressing the hogs, the officers arrived and took charge of the dressed hogs, and later delivered them to the owner. About three days after appellant had been arrested and while confined in jail, he made a confession to the sheriff in which he admitted his guilt. On his trial he claimed that at the time his nephew was shooting the hogs, he was under the impression that they were his, appellant’s, as he had some hogs running on the range in that vicinity at the time. Much evidence was introduced relating to the habits of hogs, ear marks on hogs, etc. The foregoing is a brief summary of the facts proved on the trial.
Appellant brings forward four complaints, the first of which relates to the court’s action in declining to submit to the jury his requested charge to the effect that if the jury believed from the evidence that appellant did not exercise any act of dominion or control over the hogs in question until after they were dead, or if they had a reasonable doubt thereof to acquit him. In connection therewith, he requested an instruction that although the jury believed from the evidence beyond a reasonable doubt that appellant did fraudulently take from the possession of W. W. Minter the bodies of dead hogs and that such taking was without the consent of the owner, to find him guilty of misdemeanor theft. If the court had given this charge, it would have been contradictory to the court’s charge on the law of principals. Moreover, the court instructed the jury that'if appellant had no part in the original taking of the hogs, and did *444not aid by acts or encourage by words the act of Homer Green in shooting the hogs and his only participation occurred after the hogs were dead or if they had a reasonable doubt thereof, to acquit him. It occurs to us that this was all he was entitled to.
By Bill of Exception No. 4 he complains of the court’s action in permitting the state to prove by W. W. Minter that he and his son were partners in the hogs in question; that his son was dead, having died about one year prior to the time the hogs in question were taken; that he, the witness, had charge of them, looked after them, and marked them with his son’s mark. The objection urged thereto was that it was in violation of R. C. S., Art. 3716. This is a special statute which relates only to actions by or against executors, administrators, or guardians in which judgment be rendered for or against them as such and is not applicable to cases of this nature.
By Bill of Exceptions No. 5 appellant contends that state’s counsel in his argument to the jury made the following remarks: “You heard his confession made to the sheriff and you heard his statement on the witness stand. I want to tell you that when they hire lawyers they change up their confessions when they testify,” to which appellant objected. The court qualified the bill and in his qualification states that the county attorney did not say the lawyers had changed defendant’s confession, but did say that the defendant had hired lawyers between the time he made the confession and the time he testified; that it was admitted that lawyers were hired after he made the confession. Appellant accepted the bill as qualified and is bound thereby. In our opinion, the bill as qualified fails to reflect any error. It seems to be the settled law in this state that an argument by state’s counsel constitutes reversible error only where the language complained of is manifestly improper, harmful, and prejudicial or where a mandatory provision of the statute is violated or some new and harmful fact is injected into the case. See Dinklage vs. State, 198 S. W. (2d) 578, and cases there cited.
Appellant complains because the court, at the close of the state’s case, declined to submit his special requested instruction to the jury of not guilty. He claims that he was entitled to such an instruction on the ground of a variance between the allegation in the indictment and the proof, in this, that the indictment charged that the hogs in question were the property of and in the possesesion of W. W. Minter, whereas, the evi*445dence shows that the animals were not in his actual possession but merely in his constructive possession. We see no merit in his complaint. The mere fact that the hogs were on the open range did not affect his actual possession of them, since animals cannot wander out of the possession of the owner and into the possession of another party. See Oakley v. State, 214 S. W. (2d) 298, and cases there cited. Mr. Minter was at least a part owner and had the actual care, control, and management of them.
No reversible error appearing in the record, the judgment of the trial court is affirmed.
Opinion approved by the Court.