Appellant was convicted of the theft, by fraudulently driving from their accustomed range, of three horses, the property of T. T. Dew. As originally entered, the verdict and judgment were for “ theft as charged in the indictment,” but the judgment was subsequently amended and entered for the offense of “fraudulently driving from their accustomed range live stock not his own.”
There are but two questions presented on the record which we *85deem of sufficient moment to require discussion. The indictment was in the ordinary form for theft of horses. A conviction was claimed under Article 749 of the Penal Code, which reads: “If any person shall wilfully take into, possession and drive, use, or remove from its accustomed range, any live stock not his own, without the consent of the owner and with intent to defraud the owner thereof, he shall be deemed guilty of theft, and on conviction shall be confined in the penitentiary not less than two nor more than five years, or be fined in a sum not to exceed one thousand dollars, or by both such imprisonment and fine, at the discretion of the jury trying the case.”
In his charge to the jury, the learned trial judge submitted as the law of the case the principles derivable from this provision of the statute, ■ and limited the action of the jury alone to a finding based upon this article of the code, and authorized I a conviction in case defendant was found guilty of a violation of this statute, and an assessment of punishment in accordance with its provisions.
It is insisted that under an ordinary indictment for theft, an accused party cannot be found guilty, as provided in Article 749, of the offense of wilfully driving stock from its accustomed range. It is to be noted that this article expressly declares that a party driving or removing stock from its accustomed range, under the circumstances mentioned, “shall be deemed guilty of theft.”
Every element of ordinary theft, as defined in Article 724, Penal Code, is affirmatively declared in this provision of the law, except the single one, perhaps, that the taking must be with intent to appropriate the property to the taker’s own use. 1. There is the wilful taking with intent to defraud, which is in every respect tantamount to a fraudulent taking. 2. The removal or taking from the accustomed range, which in law is a taking from the possession of the owner, because stock in its accustoiped range is in possession of its owner. 3. The removal must be without the consent of the owner. 4. The intent to defraud the owner, which is equivalent to an intent of depriving the owner of the valúe of the same; and 5. Under the circumstances stated, such driving or removal could not be otherwise than an appropriation. No other essential element than these is found in ordinary theft, and the only difference between the offenses named in Article 724, as applied to horses in Article 746, and the offense of driving horses from their range as denounced *86in Article 749, supra, is as to the puishment. In other words, the latter crime is but a lesser degree of the former.
If the offenses are the same in all essential particulars, differing only in degree, then an indictment for ordinary theft of animals would fully apprise and .put a party therein charged upon notice that the facts constituting the lesser degree could and might be proved against him at the trial. If he was thus notified, and the facts made plainly a case only of the lesser degree, then the court would only be required to charge such lesser degree, or the charge might embrace both degrees.
That such a charge is not only in an ordinary theft charge proper, but legal, and required upon a state of facts coming within the purview of Article 749, was expressly decided by our Supreme Court in Counts v. The State, 37 Texas, 593; and in the opinion of Judge Moore in Campbell v. The State, 42 Texas, 591, when our Supreme Court was composed of as able and distinguished lawyers as ever sat upon any bench, the same doctrine is again announced. Another fact connected with the decisions is that they were rendered before • the adoption of our present Constitution, and consequently that instrument cannot be claimed in its use of the word “indictment” to have intended inhibiting in this class of cases the construction given by these decisions to this statute, or rather to theft as embracing this offense as one of its degrees. Again the same doctrine was declared in Bawcom v. The State, 41 Texas, 181, wherein the same learned court (Judge Moore again delivering the opinion) say: “If stock are taken and driven from their range without the owner’s consent, and with intent to defraud, it is theft.”
Following these decisions the Court of Appeals has uniformly declared that “under the code of this State a conviction may, under an indictment for theft of cattle, be had for wilfully driving from its accustomed range any live stock of another, without consent of the owner.” (Marshall v. The State, 4 Texas Ct. App., 549; Powell v. The State, 7 Texas Ct. App., 467; and Turner v. The State, 7 Texas Ct. App., 596.) “ The expression ‘range’ of ‘accustomed range,’ as used in the statute, is matter of local description, and, unlike a -generic term requiring the species to be stated, it admits of proof under the general allegation, without defining by averments the limits of the range.” (State v. Thompson, 40 Texas, 515.) We still believe that these decisions are based upon, and fully in accord with reason, and with law both statutory and constitutional. So *87believing, we are of opinion that the charge of the court in this case was authorized by the law and demanded by the facts.
Opinion delivered March 10, 1886.The other question raised and discussed is as to the validity and certainty of the verdict to authorize the judgment as rendered. The verdict is: “We, the jury, find the defendant guilty of theft as charged in the indictment, and assess his punishment at two years confinement in the penitentiary.” It is insisted that this verdict having found defendant guilty of theft of horses, as charged in the indictment, assesses a punishment (namely, two years in the penitentiary,) which is not authorized by the law declaring the punishment for theft of horses to be imprisonment in the penitentiary for not less than five nor more than fifteen years. (Penal Code, Art. 746.)
We have seen that the charge in the indictment was theft, and theft embracing such lesser degree as is made by the facts in this case. If so, there is no reason why the verdict should not find the lesser punishment, as warranted by the facts and as attached to the lesser degree.
As to the certainty of the verdict with reference to the offense found, a similar verdict was held sufficient in Marshall v. The State, 4 Texas Court of Appeals, 549, which was an analogous case to the one we are considering, and it was further held in that case that the charge to the jury may be looked to for the purpose of ascertaining the offense of which their verdict in such a case convicts the accused. (See also Hutto v. The State, 7 Texas Ct. App., 44; Nettles v. The State, 5 Texas Ct. App., 386; Chester v. The State, 1 Texas Ct. App., 703; Cohea v. The State, 11 Texas Ct. App., 153.)
We have been unable to find any material error in the record of this case for which the judgment of the court below should be reversed, and it is consequently affirmed.
Affirmed.
(Judge Hurt dissents, and thinks the judgment should be reversed upon the first proposition above discussed.)