Appellant insists that because the judgment in Cause No. 22768 (page 218 of this volume) against this same appellant was reversed, that the judgment in this cause should also be reversed. Because of the confusion regarding the animals we have again given attention to the facts and find ourselves in disagreement with appellant's contention.
At appellant's request the State filed a bill of particulars describing the animal for the theft of which appellant was to be placed on trial in this cause as: "* * * a brahma heifer about sixteen months old, brown in color, with a spotted face, branded 'AR' on the left hip, branded 'HE' on the left jaw with an 'A' branded placed over the superimposed upon the 'HE' brand upon the left jaw, and with the left ear notched. That the animal was of female sex, weight approximately five hundred pounds." This was the animal described by the owner, Mr. Gooding. The deputy sheriff, Mr. Cowart, was present when the cattle of appellant's father and Gooding were rounded up and separated on October 15, and saw and described this animal as having been cut in with the Gooding cattle. Mr. Saldana bought two head of cattle from appellant on November 14. Mr. Cowart saw the two head and recognized one of them as the same brown brahma heifer which had been turned into Gooding's herd on October 15, and testified that she had an "A" superimposed over "HE" on the jaw. It is true Mr. Saldana testified that the "A" on the jaw had not been superimposed over an "HE," but otherwise described her exactly as did the owner and Cowart. This is one of the discrepancies which juries must settle. We have no authority to say that Saldana was right and Cowart was wrong.
We observe that in the motion we are considering reference is made to what was shown in a "bill of sale." From this we fear *Page 260 appellant has confused the facts in the two cases. No bill of sale appears in the statement of facts in this case, while one was found in the statement of facts in the other case.
The motion for rehearing in this case was properly overruled, and request for leave to file second motion for rehearing is denied.