Mackey v. State

White, Presiding Judge.

Ownership of the animal alleged in the indictment to have been stolen is averred to be in some person who is to the grand jury unknown.” A motion in arrest of judgment was made by defendant’s counsel, based upon two grounds: 1. Because the indictment does not allege nor does the proof show *608that the animal was an estray. 2. Because the evidence fails to show any possession of the animal by any one who could give or refuse consent to its taking.

[Opinion delivered March 13, 1886.]

The indictment was good. “ That such an allegation of ownership is sufficient has been repeatedly held in our State, and is a rule well established by common law and elementary authorities. Property in the animal should be averred in the true owner, if known; and, if not known, the indictment should state that it was the property of some person to the jurors unknown.” (State v. Faucett, 15 Texas, 584; State v. Haws, 41 Texas, 161; Culberson v. The State, 2 Texas Ct. App., 324; Taylor v. The State, 5 Texas Ct. App., 1; Maddox v. The State, 14 Texas Ct. App., 447; Willson’s Crim. Forms, Nos. 491 and 492.) If the indictment avers that the owner was unknown, and the evidence shows that the animal was an es-tray, no presumption of ownership arises from defendant’s possession, nor that such possession was lawful, but he must establish its legality. (Wills v. The State, 40 Texas, 69.)

Two other rules well established are: 1. That animals upon their accustomed range are in possession of the owner; and, 2d, that want of consent of the owner to the taking of the animal may be fully established by circumstantial evidence. (Jones v. The State, 3 Texas Ct. App., 498; Crockett v. The State, 5 Texas Ct. App., 526; Wilson v. The State, 45 Texas, 76; Clark’s Crim. L. of Tex., p. 259, and note.)

There are in the record eleven bills of exceptions saved by defendant to rulings of the court mainly upon questions of evidence. Many of these bills are too indefinite in their statements of the matters complained of to apprise us so fully of the questions as that we can act intelligently upon them. The others do not present objections or questions deemed by us tenable or of sufficient importance to require discussion.

As to the charge, it is objected that it is defective in that it omits to instruct the jury upon the law relative to circumstantial evidence. The facts do not show a case purely of circumstantial evidence, and hence we Cannot hold that the failure so to charge is reversible error.

We have found in the record no such error as requires a reversal of the judgment of the lower court in this case, and it is therefore affirmed.

Affirmed. -