This is a conviction for marking hogs, the property of Burke Haynes, without his consent and with the-intent to defraud.
Article 759, Penal Code, provides that “any person who shall mark or brand any horse, mule, ass, or cattle, or who shall mark any sheep, goat or hog, not,being his own, and without the consent of the owner, and with the intent to defraud, shall be punished in the same manner as if he had committed theft of such animal.”
The aggregate value of the hogs charged to have been marked is alleged to be $10. If a horse, mule, or ass be the animal, there is no necessity for alleging its value, because it is a felony and-is punished by confinement in the penitentiary, without reference to its value. But, being hogs, must value be alleged ? Certainly, because if of the value of $20, the punishment is confinement in the penitentiary; if under $20, it is a misdemeanor with milder punishment. This indictment, however, alleges value, and upon its face simply charges a misdemeanor, and of misdemeanor appellant stands con-’ victed.
But there is no proof in the record that the hogs, or either of them, were of any value. All doubt, however, as to whether defendant is charged with a felony or misdemeanor is removed. By charging value the degree of criminality and the consequent punishment is clearly indicated. Ten dollars being the alleged value of the hogs marked, a conviction for felony would be illegal, though in fact the hogs should be proven to be of greater value than $20. If under $20, the punishment is the same without regard to the actual value; and this would be the case if the value alleged is under $20, though in fact the hogs were of greater value than $20,— the State being confined to the allegation.
*209[Opinion delivered January 27,1886.]But it may be urged that, as the punishment for this offense is the same as that imposed for the theft of such animal; and that value must be alleged and proven in all prosecutions for theft, except theft of certain animals, to wit: horses, mules and asses, therefore value must Ire proved in this case. What, therefore, is the rule upon this subject?
Mr. Bishop upon this subject says: “ The allegation of value — Why and when.— The allegation of value is not made, like the description of the property, and its ownership, to identify the transaction, but to indicate the degree of criminality, and the consequent punishment. Hence it is required where the kind or extent of the punishment depends on the value of the stolen articles; but otherwise when it does not.” (Bish. Cr. Proc., 2d vol., 713; Sullivan v. The State, 13 Texas Ct. App., 462; Collins v. The State, ante, p. 197.)
We desire to be something more specific before leaving this subject. If this was a conviction for felony, then there should not only be an allegation that the value of the hogs was $20 or more, but this allegation must be shown by this record to have been established by the proof; for the very plain reason that a conviction and punishment for felony, depending upon a certain value of the stolen or marked property, must have for its support both allegation and proof. On the other hand, this conviction being for misdemeanor, its punishment is not graded by the value of the property marked, and hence there is no necessity for proof of value.
Again, it may be contended that as the punishment is the same as that in theft of the animal, and as at common law value must be alleged and proved in all cases of theft, therefore value must be proved in this case. The things or articles in which a person may have property are innumerable and unlimited, and, as property may be had in things without value, the rule obtained in larceny that value should be alleged and some value be proven, and this rule in some cases may be the law of this State. But when our Legislature by general law attempts to protect the owner’s rights in this specific property by name, certainly we should judicially know that these animals are of some value; for the act punishing the illegal marking of these animals without the consent of the owner presupposes that they are of some value.
The grounds relied upon by counsel for defendant have-been considered,- but we do not think any of them well taken-.,-. The judgment is affirmed.
Affirmed.