The description of the location of the various lanes and places mentioned in this record is not as clear as it might have been, but upon more mature consideration we have concluded that the State has not only failed to show a taking of the alleged stolen animal in Mason County, but that its testimony strongly negatived such conclusion. Ellison, owner of said animal, lived in Mason County about five miles southwest from the town of Fredonia which is in the northeast corner of said county. The town of Voca is in McCullough County nine or ten miles northwest from Fredonia. The county line of Mason County ran three or four miles north from the Ellison home. He had a 2100 acre pasture extending north to within a mile and a half or two miles of said county line. From this pasture a lane extended north seven or eight miles to Voca. A gate opened from Ellison's pasture into this lane, which gate was usually left open. The animal in question ranged in this pasture. Missing it and others, Ellison searched for them and found this one in the pasture of Cal Willis on the San Saba river some seven or eight miles north from the pasture in which it had ranged. Ellison hauled the animal home in a wagon.
Brady, the county seat of McCullough County, lies northwest from Voca, and on the Voca and Brady road in McCullough County lived J.J. Evans, who testified for the State that he lived about eight miles from the Mason County line and north of a road that ran due east from Voca; also that in March, 1920, he saw a yearling running around his place several days, saw it first in one pasture or field and then another, and saw it finally get out into the lane running east and west near his house. Shortly after that witness saw appellant and one Holt driving the yearling east in said lane. Witness said he afterwards saw Ellison with said yearling in a wagon. This *Page 268 is the State's only proof supporting the proposition that the animal was taken by appellant in Mason County, or that he had any connection with it at all in said county. The proposition of venue was made an issue in the trial court and was submitted to the jury in a special charge, but we are constrained to believe that their finding against appellant on this issue is without support in testimony. There was no conflicting evidence upon the question. Ellison's gate was open and his yearling was seen by State witness Evans around his place in a field and lanes some eight miles north of the Mason County line and in McCullough County. After this appellant was seen driving it. There is not a circumstance in the record to show that he had anything to do with its being near Evans' place. His own theory about it was that of a purchase from Holt. Witnesses testified to a purchase of a yearling by appellant from Holt, and other witnesses testified that about the time Evans claimed to have seen Holt and appellant driving a yearling in the lane near his place, that appellant was employed to drive a yearling along that road or in that lane. Whether these propositions be true or not, this can be thrashed out in a case wherein the venue can properly be laid in McCullough County. If the animal in question had strayed away from its owner into McCullough County, it would seem to be in his care, control and possession and a taking by appellant or anyone else in McCullough County could be tried and determined in that county.
Believing the record devoid of testimony of a fraudulent taking of the animal in Mason County, the motion for rehearing is granted, the judgment of affirmance set aside, and the judgment now reversed and the cause remanded.
Reversed and remanded.