To say the least of it, it is questionable from the record if the venue of the offense in this case was affirmatively proven upon the trial below. Upon another trial it certainly should be established more definitely.
Appellant was indicted for theft of an animal belonging to one John West. Even if the allegation of ownership had been proven as alleged, then the evidence is by no means conclusive and convincing that defendant stole the same, but, on the other hand, it tends strongly to show that he took it openly, claiming to have traded for it with West. Ownership in West is, however, not sustained by the weight of the testimony. To our minds it seems the preponderance of the evidence goes to establish that the animal, though taken by defendant as the property of West, belonged in fact to one Mrs. Pipkin. With regard to this important question of ownership, defendant’s refused special instruction presented the point much more strongly and pertinently than the charge of the court, and, under the peculiar circumstances shown, should, perhaps, have been given.
There was testimony tending to establish a purchase of the animal by defendant, and the charge of the court fails to present this phase of the case. (Ray v. The State, 13 Texas Ct. App., 51.)
Because the evidence fails to establish a fraudulent taking by defendant, and also fails to establish the. ownership as alleged in the indictment, the judgment is reversed and the cause remanded.
Reversed and remanded.