Appellant was prosecuted and convicted of theft of cattle, and his punishment assessed at three years confinement in the State penitentiary.
Clyde Smith testified that he, Dennis Kemper and appellant killed the beef, and just before starting to go and get it, they were discussing the matter in the presence of his wife. He details a conversation that took place between himself, his wife and appellant in regard to the theft of this animal. His wife also testifies to this conversation. As appellant was present, took part in it, and said there was no danger of getting into trouble as he killed beeves all the year round, the court did not err in admitting the testimony.
Clyde Smith and his wife testified that on this occasion appellant was riding a certain horse, and Smith testified to the way they went in going after the yearling, and returning with the hind quarters of the yearlings, and that they buried the head and fore quarters. Clee Rothwell testified that he knew the horse; that he was shod all around, and that he knew the kinds of tracks he made; that he traced this horse's tracks, corroborating Smith in the way they traveled, and also found the head and fore quarters of the beef buried. Many objections were urged to this testimony, but none of them are tenable. They might go to the weight to be given the testimony but not its admissibility. Some may think it difficult to be able to swear to the tracks of any horse, but if one is willing to *Page 228 do so, it is not an opinion but a statement of a fact, and so far as this court may determine, there may be something peculiar about the track made by the horse which would cause any one to recognize it. Smith also testified that the hide was buried after the brand was cut out. The deputy sheriff went to this place and found a hide buried there with the brand cut out, and brought it to town. The alleged owner of the animal, Ed Foster, saw the hide and said it looked just like the hide of the animal he lost, and he would take it to be the hide of his animal. This witness' entire testimony renders admissible that part objected to. It was not an opinion and conclusion, but a statement of facts, from which the jury would be authorized to draw their own deductions.
Mr. Foster was permitted to testify that the animal he lost was branded "7" on the neck and "Diamond F" on the left side. This testimony was objected to on the ground that it was shown this brand was recorded. This evidence was not offered to prove ownership, but the identity of the animal. The hide which was dug up and which Mr. Foster testified looked like the hide of the animal he lost, had two cuts in it, where he said his animal had these brands placed on it, and this testimony would account for the holes in the hide and why there was no brand on the hide. The court at the request of appellant charged the jury: "You are charged that the evidence in this case in regard to the brands testified about being on any animal or animals, will not be considered by you at all on the question of ownership and can only be considered on the question of identity if it shows anything on that question or that question arises in the case."
The court properly refused the charge peremptorily instructing the jury to find appellant not guilty. There was ample evidence to sustain a verdict of guilt if the jury believed the evidence offered in behalf of the State.
Neither did the court err in refusing to give special charge No. 2, as there was no evidence calling for such charge. There is no evidence that Kemper and Smith killed the animal, and appellant was only connected with the matter after the death of the animal. If it was Foster's animal, appellant was the moving spirit in the theft, and helped to drive it from its range to the place where it was killed.
There is no evidence which would raise the issue that Mrs. Mary Smith was also an accomplice. It is true she heard them talking about the theft of the animal, but she advised against it, and after it was killed and part of it brought to her house, she refused to have anything to do with the beef. (Pinckard v. State, 62 Tex.Crim. Rep., 138 S.W. Rep., 601.) Neither is there any evidence that in killing the animal appellant thought it was his own, consequently there was no error in refusing the charge presenting this theory to the jury.
The only other ground in the motion complains of the sufficiency of the evidence. If the facts made Mrs. Smith an accomplice, there might be some question as to the sufficiency of the corroboration; however, we hardly think this would be the case when we consider the testimony *Page 229 of Clee Rothwell. But, inasmuch as we have held that Mrs. Smith was not an accomplice, there can be no question of the sufficiency of the evidence to sustain the verdict.
The judgment is affirmed.
Affirmed.
ON REHEARING. January 29, 1914.