Appellant insists we were in error in our original opinion herein in that, among other things, it is shown from the facts that appellant had previously been convicted of the unlawful taking of this animal in district court cause No. 6709, our No. 22768, and that the jury were in error when they found his plea of former conviction to have been untrue. *Page 258
In the first place, his plea of former conviction was prematurely filed; the case upon which the claim of jeopardy was based had been tried only the week previous, and final judgment had not been entered thereon at such time as is evidenced by its presence in this court at the present time on appeal. Mr. Branch says in his Penal Code, p. 319, Sec. 630:
"If the judgment which is the basis of the plea is pending on appeal it will not support a plea of former conviction. Only a final judgment will support a plea of former conviction. Williams v. State, 20 Texas Crim. App. 358; Dupree v. State,56 Tex. Crim. 565, 120 S.W. 871; Harvey v. State,57 Tex. Crim. 5, 121 S.W. 501; Phillips v. State, 164 S.W. 1007."
However, we note that the trial court submitted to the jury, under proper instructions, the matter of the truthfulness of appellant's plea of former conviction, and in their verdict they specifically found same to have been untrue, and we think they were correct in so finding.
Unquestionably there is some conflict in the testimony relative to the brands on the allegedly stolen animal. We gather from the facts that appellant was charged with other thefts from the same owner, and appellant suggests that because of the fact that two certain animals were sold by appellant at the same time, then that same were taken from the owner at the same time, in one and the same transaction. We do not think that such a conclusion would naturally follow because of the sale of both at the same time. These were range cattle, and were last seen in the complaining witness' possession on about October 15, 1942, and the one here in question was sold by appellant one month later, not in company with the animal mentioned in our cause No. 22678. It would necessitate an indulgence in a presumption for us to say that these two cattle were taken at the same time and by the same criminal act.
It is true that the animal in question herein, being a brown heifer about 18 months old, spotted face, part Brahma, was testified to by some of the State's witnesses as being branded "AR" on left hip and "A" on the left jaw superimposed upon an "HE" brand, and another State's witness giving the same brand, except denying that the "A" on the left jaw was superimposed upon the "HE" brand. As to this conflict, it should be sufficient to say that it is shown substantially that this brown 18 months old heifer, part Brahma, with a spotted face, was Mr. Gooding's heifer, and she was found in the possession of appellant, *Page 259 and that she was taken from Mr. Gooding's possession without his consent. As to who thus took her, the jury were instructed by the trial court to acquit appellant unless they believed beyond a reasonable doubt that he took her from Mr. Gooding's possession without his consent. Evidently they were of the opinion that appellant was such taker, and we do not feel disposed to say that they were not correct in so finding.
The motion will therefore be overruled.
ON APPELLANT'S REQUEST FOR LEAVE TO FILE SECOND MOTION FOR REHEARING.