This is a companion case to that of M. M. Smith, just decided, and grew out of the same transaction.
In each of these cases the sufficiency of the indictment is attacked with regard to the averment of want of consent to the taking of the cattle. Five of the cattle are alleged to be of the property of Eugene Trammell, and eight of W. A. Trammell. Now, the averment of want of consent is as follows: “Without the consent of the said owners.” Upon this point we copy from the opinion of Judge Hurt in Jim Smith’s case, where the same question came up for review. He says: “It is urged by counsel for defendant that this is not sufficient, because each owner’s consent is not denied. This criticism is j ust, but, under the allegations of this indictment, is it essential to the sufficiency of the indictment for the consent of each to the taking of all the cattle to be denied? It is not alleged that Eugene Trammell owned, controlled, or had possession of the eighteen head of cattle, nor that W, A. Trammell managed, controlled, or had possession of the *136five head. There was no authority in Eugene to give defendant or anyone else his consent, to take the eight head, or any part thereof. The fact that they were running together, when taken, certainly would confer no such authority. The observations ap- ' ply with equal force to the authority of W. A. to give consent to the taking of the five head, the property of Eugene. This is not a case in which there is joint possession and ownership.” The allegation of want of consent is therefore sufficient.
The first bill of exceptions is explained by the judge, and from his explanation the evidence objected to, appears to have been expressly withdrawn by him from the jury. If it had not been withdrawn we are of opinion it was admissible as evidence, it being part of the res gestee of the transaction, and a declaration of one of the co-conspirators pertinent to the transaction.
The second bill of exceptions was taken to the admission of the testimony of the witness Guyger to the fact that, on the sixteenth of July, he saw Tom Saunders and Willis Brooks driving ten or fifteen head of cattle, about a quarter of a mile from Buckner’s crossing on the Brazos. This matter is similarly presented and fully discussed in M. M. Smith’s case, and for the reasons therein stated we hold the evidence was admissible.
The third bill of exceptions as explained by the judge shows no error. It was legitimate to permit the witness Kenyon to testify that M. M. Smith, one of the conspirators, told witness that he had thirty or more head of cattle out west. The evidence threw light upon a subsequent portion of the transaction; and, besides, it is not manifest that, at the time of these statements to the witness, the conspiracy did not already exist, with defendant. But suppose it did not then exist, so far as defendant was concerned, yet, if afterwards he came into it, and adopted the conspiracy as formed by other parties, he would be bound by the conspiracy as adopted; which seems to have been to steal some thirty odd head of cattle. This defendant was the party- to whom M. M. Smith executed his power of attorney to go out west and gather the cattle.
Under the explanation given by the judge there is no merit shown in the matter stated in the fourth bill of exceptions.
The fifth bill of exceptions was reserved to supposed errors in the charge of the court, and more especially to the third paragraph, which was as follows, viz: “If you believe from the evidence that the defendant, Dave Smith, at or about the time, and in the county alleged, wilfully took into his possession the *137said cattle, and removed the same from their accustomed range, without the consent of the alleged owner, and with intent to defraud the said owner; and if, moreover, you believe from the evidence that the said cattle were not, at the time of such removal, the property of the defendant, but were in fact the property of the parties charged in the indictment to have been the owners, you will, if you so believe and find, find the defendant guilty of theft, and assess his punishment at confinement in the penitentiary not less than two nor more than five years; or you may assess the punishment at a fine in any sum not exceeding one thousand dollars; or you may, in your discretion, assess both such fine and imprisonment.” This charge was based upon Article 749 of the Penal Code, which denounces a wilful driving of stock from its accustomed range, under the conditions stated in the Article, to be theft.
It is contended that the charge was not warranted under the allegations of the indictment in this case, which was one in the ordinary form for theft. Thjs whole subject was recently discussed by us fully in the case of Foster v. The State, recently decided, wherein it was held that the crime denounced by Article 749 of the code was a lesser degree of theft, containing all the elements of theft; and that it was not only legitimate, but,”if the facts warranted, it was the duty of the court to charge the law of this Article under an indictment charging theft of animals in the ordinary form. There was no error in the court charging as above in this case; it was. a charge favorable to defendant.
As a whole, the charge is unobjectionable in its presentation of the law of this case. Mo additional instructions were requested for defendant. We have been unable to find any such error in the record as requires that this judgment should be reversed, and it is therefore affirmed.
Affirmed.