On Motion for -Rehearing.
Appellees seem to construe our conclusions on the original hearing as having been predicated principally upon the theory that proof was made of an outstanding title in the cattle in controversy in Newman, to whom sale was made of steer calves, as shown in our original opinion. They cite testimony to show that all of the animales *325purchased by Newman were shipped to Chicago, and also they refer to a statement in appellant’s brief to show that his counsel likewise construed such testimony.
Appellant, in his reply to motion for rehearing, insists that, as shown by other testimony of the same witness, those witnesses did not, in fact, know whether the cattle were shipped to Chicago, but only concluded that such was done, drawing such conclusions from the fact that Newman stated that he bought them for such a shipment, and that he loaded them on the cars for that purpose.
The interpretation of our opinion, suggested above, is erroneous. We referred to the testimony of two of Newman’s sons as tending to show that two or three only of the animals which bore certain flesh marks, and which flesh marks were especially relied upon by appellees as proof of title in Martin to all of the 45 animals in controversy, were probably included in the number sold to Newman; and we do not think that we were in error in that conclusion, especially when the testimony of those two witnesses is read in connection with the testimony of Martin himself, set out in the original opinion. But that conclusion was stated merely as additional argument in support of the judgment rendered by us, and the correctness of that judgment was not intended to hinge or depend upon that conclusion, alone.
The suggestion that 50 or 60 head of calves, which, according to the theory of defendants, were stolen from Martin, might have been driven to Toyahvale, and there disposed of to Shultz, Gleim & Epsy, and included in the shipment they made to Ft. Worth, is positively controverted by the testimony of Epsy, who was a disinterested witness, and the truth of whose testimony was not denied by any witness or circumstance in evidence. The possibility so suggested by appellees cannot be given the force of evidence.
Again, appellees insist that the failure of witnesses Bellows,' Lake, and Norred, all of whom took part in the negotiation of the sale from Marrs & Lake to Beynolds in Ft. Worth, to testify that they saw any Y brand on any of the cattle so sold to Reynolds, and the absence also of any testimony to the same effect from Roy Berry, who put the S brand on the cattle so purchased by Reynolds in Ft. Worth, were circumstances which tended to refute the contention made by plaintiff that some of the cattle included in that purchase were branded with a Y brand. It does not appear from the record that any of those witnesses were interrogated upon that subject, and we know of no rule which would make an absence of such testimony from them a circumstance which should be weighed as evidence against the plaintiff.
Appellees further cite the testimony of Martin and the witness Ed Lisenby to the effect that, soon after the controversy first arose between Martin and Stovall over the title of the steers, Ben G. Reynolds told those witnesses he did not know whether any of the steers bought by him in Ft. Worth from Marrs & Lake had a Y brand on them or not, and that the boy, Newt Craig, who was then in the employment of Reynolds, and who had been a caretaker of the animals sold to Stovall, also made a statement to the same effect, coupled with the further statement that the cattle sold to Stovall by Reynolds had been shipped from Amarillo. That testimony was introduced by the defendants to discredit the testimony of Reynolds and Newt'Craig to the effect that the cattle sold by ¡Reynolds to Stovall, branded V on the jaw, were purchased in Ft. Worth from Marrs & Lake. Aside from the testimony of those two witnésses, the testimony of J. W. Craig, who also saw the cattle which were purchased by Reynolds in Ft.' Worth, and who had every opportunity to know the brand of those cattle, was direct and positive that some of them did have the V brand on the jaw, and no effort was made to impeach the credibility of that witness, who appears to have been disinterested. Nor was there any testimony whatsoever to show that any of the cattle purchased by Reynolds in the vicinity of his ranch had a V brand on them. The mere possibility that those cattle might have had a brand cannot be given force as evidence.
Furthermore, the earmark upon the cattle in controversy, which was an underbit, was as much a mark of identification as were the Y brands. That mark, unquestionably, was Medley’s, and not Martin’s, mark, and notwithstanding any brands on the cattle proved conclusively that those animals were never branded by and stolen from Martin, which was his only theory of defense to plaintiff’s suit, unless it had been originally a slit in the ear and afterwards changed to an underbit by some thief, who had stolen the cattle from Martin and made the change for the purpose of destroying evidence of the theft. The only direct and specific proof offered by defendants to show that such a change had been made amounted to nothing more than expert testimony that it could easily have been accomplished, and that the cut necessary to effect it would likely so heal within a period of three weeks or a month that it could not be distinguished from a cut several months old. In other words, such testimony was merely to the effect that it was possible that such a change had been made in the earmark, and not that it had been done, and proof of such a possibility furnished no evidence of the theft.
[6, 7] In order to overcome plaintiff’s prima facie proof of title, which was unquestionably established, it was incumbent upon de*326fendants to identify the cattle as included in those stolen from Martin, and in order to do this the burden was upon them, not only to show that the V brand was placed on them by Martin, but also that the earmark had been changed by the thief from a slit to an underbit, since, according to defendant’s own proof, Martin’s cattle were not only branded with a V brand but had the slit, and not an underbit, in the ear. The evidence offered by defendants to sustain the conclusion sought to be established that the V brand had been placed on the cattle by Martin, and not by Medley, consisted of certain circumstances, which in no manner referred to the supposed change in the earmark, in connection with presumptions drawn directly therefrom. And even though it could be said that such circumstantial evidence and presumptions constituted proof sufficient, prima facie, to sustain the conclusion that the V brand on the cattle was Martin’s brand, without the necessity of building other presumptions upon those presumptions, yet under the rule of evidence referred to in the original opinion it would not be permissible to build upon the conclusion so established, the further conclusion that the thief who stole the cattle had made the change in the earmark in order to conceal the theft.
After a very careful review of the testimony and of the arguments advanced in support of the motion for rehearing, we have concluded that same should be overruled; and it is so ordered.
Motion overruled.