On a former day of this term this case was affirmed, and appellant has filed a motion for a rehearing. In the first ground he complains bitterly of the eighth paragraph of the original opinion, in which we did not consider a bill of exceptions that appellant claims to have reserved in the statement of facts, and citing us to a number of cases holding that bills of exception can be reserved in a statement of facts. This we concede, and was conceded in the original opinion, but bills of exception, whether in a statement of facts or in separate bills, must be approved by the court. In this instance the court limited his approval in the following language: "The foregoing forty pages having been submitted to me and after having examined same I hereby approve same as a true and correct transcript of the evidence adduced on the trial of the above cause, and order same filed with the records in this cause as the statement of facts herein."
In speaking of reserving bills of exception in a statement of facts this court held in Blackwell v. State, 33 Tex. Crim. 278, speaking through our presiding judge: "While bills reserved to the admission of evidence may be so preserved, the refusal of the court to do so would not be cause for reversal. The defendant may prepare his bills otherwise, and if refused by the court they can be proved up by bystanders under the statute. The defendant is not left without remedy in regard to bills of exception. Rev. Stats., articles 1358-1367."
We have no reason to know why the judge so limited his approval as to exclude the idea that he was approving the bills therein contained, but as said in the Blackwell case, supra, the defendant was not left without remedy, and in three other instances where the objections and exceptions appear in the record in this case, the defendant did pursue his remedy and bring the questions before us in separate bills approved by the judge. In Moss v. State, 39 Tex.Crim. Rep., this court held that "Bills of exception not approved by the trial judge *Page 618 will not be considered on appeal," and while the rules adopted by the Supreme Court authorize bills of exception to be preserved in a statement of facts as well as by a separate bill, yet it has never been held that any character of bill not approved by the trial judge would be considered on appeal, and if a person elects to preserve his bills of exception in a statement of facts, it must be evident that the trial judge in his approval of the record did so with the knowledge that it was being done, for if the bills are thus brought up and the approval of the record shows that he did not so intend, and limited his approval as a statement of facts alone, the bills will not be considered by us. However, if we were to consider the matter complained of as a bill of exceptions, no such error as would cause a reversal of this case would appear. The objection was to the admissibility of the record of Sarason Guedry's brand, because the record did not show on what part of the animal it was to be placed. When the witness George Fairchilds was on the stand, the defendant made the following proof by him:
"I know the Guedry brand C.I. cross or bar. As to whether that letter `I' is put in that circle a long `I' or a dot, well on most of them it is a dot right on the inside of the `C.' I do not know whether it is run or put on with a rod, made the brand with a rod; I suppose you can make it either way, run it or have a brand either I guess. When I bought it that cow had Guedry's brand on it. I know Guedry's brand."
The State had asked this witness no question in regard to the matter. And while the witness L. Carr was on the stand the defendant objected to him testifying about the brand, when the court in ruling remarked: "You brought it out on cross-examination." The State did not depend on the brand as proof of ownership, but Day Canter testified: "That (the brand) was not the way I base my idea that it was Guedry's cow. I knew the cow." So if the bill should be considered, no such error is presented as should cause a reversal of the case.
In Rogers v. State, 26 Texas Crim. App., 404, it is held that the erroneous admission of evidence is not cause for reversal if the same fact was proven by other testimony not objected to.
Defendant insists also that in the ninth paragraph the court misunderstood the position of appellant, and that the proposition submitted by appellant was that the theft took place at the time the brand was changed, and if appellant changed the brand, this was the original taking, and the fact that he was subsequently seen driving it from its accustomed range is but a circumstance to be considered in determining whether or not he is the person who stole the animal from Brown and Carr, and the court should have charged on circumstantial evidence. Appellant requested no special instruction in regard to this matter, and article 723 of the Code of Criminal Procedure provides that in case such error is committed by omission and it was not *Page 619 calculated to injure appellant, it would not be cause for reversal, and if the taking really took place when the brand was changed, if appellant did the branding, the error, if any, would be harmless. Appellant's contention that he got the animal from Lampert was fully presented to the jury, and they found against his contention. But we do not place our opinion on that ground. If one takes the animal of another and brands it and then leaves it on its accustomed range, while he might be guilty of an offense, the owner is deprived of no property. As said by Judge Davidson in Trimble case, quoted in the original opinion, if the animal escaped after being taken, it would again be in the owner's possession. And so in this case, if the animal after being branded escaped and returned to its accustomed range, it would be a fresh theft, and Canter testified he saw appellant driving this animal from its accustomed range.
Another contention made by appellant in the motion for a rehearing is that the court erred in holding that the evidence was sufficient to support a finding that Brown and Carr were the owners of the animal, in that the evidence showed it was Guedry's property, and that the evidence merely showed that Brown and Carr had charge of Guedry's cattle running on that range, and did not show the specific time when they had charge of the cattle; thathad means past. No such fine spun distinction was assigned as error in the motion for a new trial. The only ground in the motion for new trial relating to this matter is the twelfth, which reads as follows:
"The court erred in instructing the jury to convict the defendant if they believed he fraudulently took from the possession of Brown and Carr one head of cattle, and that said Brown and Carr were at the time the owners of said cattle, or were in the care and control of the same, because such instruction permitted the jury in the light of the evidence to convict the defendant if they believed that the animal belonged to Brown and Carr, whereas the State never contended that the animal belonged to Brown and Carr, but on the contrary, undertook to show that one Guedry was the owner of the animal and that the brand of Guedry had been defaced and changed into the brand which the defendant contended he had purchased, and the evidence having further shown that there was doubt as to what the original brand on the animal was, even if the same had been defaced. Hence, this instruction as to the ownership of Brown and Carr permitted the jury to convict the defendant, although they should find that the animal was not the property of Guedry."
Such an issue as presented in this assignment was not raised in the evidence. Brown and Carr did not claim to be actual owners of the animal, but only to have the care, custody and control of it for Guedry. No witness suggested even that they were the actual owners. An issue not raised by the evidence should not be submitted, and while the question passed on in paragraph two of the opinion was raised in appellant's brief, it was not presented in the motion for a new trial, *Page 620 and should not have been considered by us. However, the evidence is ample to support the finding that Brown and Carr were the special owners of the cow under the decision of this court. In addition to the authorities cited in the original opinion see Tinney v. State, 24 Texas Crim. App., 112, and authorities there cited, and McMullen v. State, 59 S.W. Rep., 891, in which Judge Davidson discusses this question.
The motion for rehearing is overruled.
Overruled.