Appellant was indicted charged with theft of cattle, and upon a trial he was convicted and his punishment assessed at two years confinement in the penitentiary.
1. The first question presented in appellant's brief is that the indictment should be quashed, the indictment alleging that the one head of cattle was the property of John Brown and L. Carr. It is insisted the indictment should have alleged that the property was taken without the consent of John Brown, and without the consent of L. Carr, or either of them. We do not think the motion is well taken. When the allegation is that the property was taken without the consent of Brown and without the consent of Carr, no additional allegation as to want of consent is necessary. Williams v. State, 19 Texas Crim. App., 276. The cases cited by appellant are not applicable in that in those cases it was not alleged that property was taken without the consent of each of the alleged owners. In this indictment the allegation is specific that the property was taken without the consent of each of them.
2. Appellant complains that the proof does not show that the property was in possession of the alleged owners, and if so, their control was not such that ownership could be alleged in them. The proof is that the cattle were the property of Sarason Guedry. The ownership is alleged in John Brown and L. Carr. Harb Whittington testified: "John Brown and L. Carr had charge of Guedry's cattle." L. Carr testified: "I have charge of Sarason Guedry's cattle. There is someone assisting me and in charge, also; it is John Brown." John Brown testified: "I have charge of Sarason Guedry's cattle. After I came down there me and L. Carr had charge of them." They were cattle on the range, and the owner had these gentlemen in charge of them, looking after them, branding the increase, etc. They testified that neither of them gave their consent to defendant taking the property. This question is fully discussed in Littleton v. State, 20 Texas Crim. App., 168, and in Bailey v. State, 18 Texas Crim. App., 426. In the Littleton case the cattle were taken from the range, and Hue Haby was in charge of them. The indictment alleged the ownership and possession in Huegele, the real owner. Judge Hurt, in an extensive opinion, reverses the case, because of this and holds that the ownership and possession should have been alleged in Haby, or the ownership in Huegele and possession in Haby.
3. In appellant's bill of exceptions No. 1 he complains that while John Brown, witness for the State, was testifying he stated that at the time he and others examined the brand on the cow in question; he made a memorandum of the mark and brand found on the animal, and thereupon handed this memorandum to the district attorney, who offered it in evidence, to which defendant objected, because the same was a private memorandum and made at a time when the defendant *Page 615 had no opportunity to cross-examine the witness. The court, in approving the bill, says the witness had already testified to the mark and brand he found on the cow, and his testimony corresponded with the exhibit. The court did not err in admitting the testimony. The defendant at the time had an opportunity to cross-examine the witness, and he did so vigorously, and if pictures of scenes, etc., are admissible, we can see no reason why the testimony of a witness who testifies that he made an exact copy of the brand on the cow is not admissible. It has been frequently held by this court that hides with the brand on them are admissible in evidence in cases of theft.
4. In bill of exceptions No. 2 defendant complains, after the testimony had shown that defendant sold the animal in question to George Fairchilds, that Fairchilds was permitted to testify that he had shown the cow he purchased from defendant to Harb Whittington. This was followed up by testimony from Whittington, Canter, Carr and Brown, rendering the testimony very material, in that this was the cow that is alleged to have been stolen and identified by a portion of the witnesses as Guedry's cow, and which animal Fairchilds testified he purchased from defendant.
5. In his third bill of exceptions defendant complains of the action of the court in admitting in evidence a road petition signed by C.K. Lampert. Defendant claimed that he had purchased the alleged stolen animal from C.K. Lampert, and introduced in evidence a bill of sale with his name signed to it, as evidence if the animal was stolen Lampert was the thief. Lampert was shown to have other charges against him, and had gone to parts unknown. Fairchilds testified that he circulated the road petition; that he knew C.K. Lampert, and that he saw him (Lampert) sign his name to the petition. W.J. Ziess, a bank cashier, qualified as an expert, and testified that the man who signed the bill of sale to defendant did not sign the road petition, that both signatures were not written by the same man. The road petition was admissible.
6. Defendant's bill of exceptions No. 4 complains of the action of the court in refusing to permit him to prove by the witness Warren what Lampert had told the witness, and what the witness' understanding was from what Lampert had told him. The witness' "understanding" would certainly not be admissible, and what Lampert told him would be hearsay. It is not shown to have had any connection with the animal alleged to have been stolen.
7. In defendant's fifth bill of exceptions he complains of the action of the court in refusing to permit him to introduce a bill of sale to James Casey to some hogs. The bill of sale is shown to have been signed by Chas. Lampert, per Mrs. C.K. Lampert. The bill of sale is shown not to have been written by Lampert, but by his wife, and is inadmissible for any purpose. The defendant does not claim that it is Lampert's handwriting, nor that it was signed by *Page 616 him, and it could not and would not tend to prove any issue in the case.
8. These are all the bills of exception in the record, reserved in the usual form, and approved by the judge. But in the brief appellant seeks to assign errors on objections to the testimony not preserved in bills, referring to the statement of facts filed herein. The judge in approving the statement of facts limits his approval as a statement of facts, and we can not consider bills of exception not bearing the signature of the trial judge. Defendant probably apprehended this fact by reserving the above bills of exception. The other questions raised in regard to the introduction of evidence, we can not consider, as they are not authenticated by the trial judge. See article 724 of the Code of Criminal Procedure, and the authorities cited in sections 860 and 861 thereunder in White's Annotated Code of Criminal Procedure.
9. Defendant contends that if the animal was originally branded in Guedry's brand and was in charge of Brown and Carr, that prior to the time he was seen driving it from its range, that the brand had been changed and that in changing the brand such person must have reduced it to possession, and the theft would not be from Brown and Carr, but from the person who had altered the brand. This contention is not sound. In the case of Trimble v. State,33 Tex. Crim. 400, Judge Davidson correctly holds: "The hogs were placed in the pen built by appellant and afterwards escaped. If they entirely escaped from the control of their captors, in law they would be in the possession of the owner again. In such state of case a second taking would be a fresh larceny, and the taker could be punished therefor." So in this case, if some person did capture the animal, and change the brand, and then turn her loose on her accustomed range, she would again be in her owner's possession, and if the defendant then took her and appropriated her to his own use, it would be theft from the owner.
10. Defendant complains that the court erred in not charging on circumstantial evidence. The testimony shows the animal to have been Guedry's, if the State's theory was believed. Brown and Carr were in charge of Guedry's cattle. Canter swears he saw defendant driving her from her accustomed range. Fairchilds swears he bought the cow from defendant. Defendant admits he took the cow from her accustomed range and sold her to Fairchilds, basing his defense on an alleged purchase from Lampert. The court did not err in not charging on circumstantial evidence.
11. The defendant complains of the charge of the court, in that he says that the court limits his defense to a purchase from Lampert. The court charged the jury: "You are further charged that if you find and believe from the evidence that the animal in question (the red heifer about which the witnesses speak and which defendant sold to George Fairchilds) was purchased or obtained by the defendant of *Page 617 one Lampert, then you will acquit defendant, no matter what the other facts of the case may be, or if upon this point, that is, as to whether the defendant purchased or obtained said animal from one Lampert, you entertain a reasonable doubt, you will solve the doubt in favor of defendant and acquit him and say by your verdict not guilty." This presents admirably defendant's defense as made by his testimony, but the court went further and instructed the jury that if on the whole case they had a reasonable doubt as to defendant's guilt they would acquit him. Defendant requested no special instructions. The bills of exception present no error. The evidence amply supports the verdict and the judgment is affirmed.
Affirmed.
ON REHEARING. June 21, 1911.