HENDERSObT, Judge.
Appellant was convicted of the theft of a horse in the Territory of Oklahoma, and subsequently bringing the same into McLennan County, Texas; his punishment being fixed at five years in the penitentiary.
Appellant made a motion to quash the indictment, because he claims that the same is for general theft under art. 858 Penal Code, and not theft of a horse under art. 881 Penal Code; and that the indictment contains no value fixed to the property. We have examined the indictment carefully and it is not amenable to the criticism of appellant. As we read it, it is an indictment for bringing a stolen horse into this State ; and by reference to the law of the Territory of Oklahoma, it will be seen that “horses” are made the subject of theft in said territory; that is, in their statute horses are classified, while in our State the genus horse includes a stallion, mare, gelding, etc. On the subject of indictments for offenses of this character, see Morales v. State, 21 Texas Crim. App., 298; McKenzie v. State, 32 Texas Crim. Rep., 568; Cummings v. State, 12 Texas Crim. App., 121; Smith v. State, 37 Texas Crim. App.,
342. Under these authorities we think the indictment is sufficient, and the court did not err in overruling the motion to quash.
On the trial appellant reserved a bill of exceptions to the introduction of the statutes of the territory of Oklahoma on the subject of larceny. We quote portions of said bill, as follows: •
“(2465) Section 546. Larceny is the taking of personal property accomplished by fraud or stealth, and with intent to deprive another thereof.
(2480) Section 561. That if any person shall steal any stallion, mare, colt, gelding, ridgling, or any ass, genet, or mule, or any bull, cow, calf, steer, or stag he shall be guilty of a felony, and on conviction thereof, shall be punished by confinement in the Territorial penitentiary for a term (of) not less than one nor more than ten years.
Last Section. Act. February 14th, 1895.
Which two paragraphs aforesaid, are excerpts from a part of a certain printed volume then and there produced;, entitled, ‘Wilson’s Revised and Annotated Statutes of Oklahoma, 1903. By W. F. Wilson, M.A., LL.B., of the Oklahoma City Bar,’ and which aforesaid volume had printed on the first page thereof, the following:
AUTHENTICATION.
COUNCIIL BILL No. 191.
AN ACT
To make Wilson’s Revised and Annotated Statutes of Oklahoma presumptive evidence of the laws of the Territory. .
Be it enacted by the Legislative Assembly of the Territory of Oklahoma : Section 1. That the two volumes published by the State Capital Company, entitled, ‘Wilson’s Revised and Annotated Statutes of Oklahoma, 1903/ is hereby presumptive evidence of all the laws of the Territory of Oklahoma in force prior to the acts of the Seventh Legislative Assembly and the publisher thereof is hereby authorized to insert on the title page of said work, the words, ‘Published under the authority of the Legislative Assembly of the Territory of Oklahoma.’
Section 2. This act shall take effect and be in force from and after its passage and approval.
Charles R. Alexander,
President.
Wm. Bowles,
Speaker.
Approved March 16, 1903. T. B. Ferguson,
Governor.”
We do not copy the certificate of authentication, as no objection was made to that.
Appellant objected to the introduction of this evidence, because the same did not purport to have been printed under the authority of the Territory of Oklahoma, and because the same did not purport to have been passed as the laws of said Territory, but only purported to be presumptive evidence of the laws of said Territory in force prior to the acts
of the Seventh Assembly; and because it is not shown when the Seventh Assembly was held or otherwise properly fix the date at which time said printed book should be held as presumptive evidence of the laws of said Territory; and because said alleged authority purported to take effect on the 16th of March, 1903, a point of time subsequent to the time which the alleged theft in this case took place, according to the allegations in the indictment, and according to the testimony of the prosecuting witness J. W. Keyes. Appellant further objected to that portion of the evidence at the bottom of sec. 561, to wit: “Last Section. Act. February 14th, 1895,” on the ground that said excerpt was printed in small type, and said excerpt constituted a note, and a notation in and to said purported volumes of statutes; and the same was not a part and did not purport to be a part of the statute law of the Territory of Oklahoma. The certificate of authentication to said laws of the Territory of Oklahoma, being conceded as sufficient, an objection to the introduction of the two sections defining larceny and making theft of horses an offense, cannot be sustained. The fact that the statute of the Territory of Oklahoma only made “Wilson’s Revised and Annotated Statutes of Oklahoma
presumptive
evidence of the laws of the Territory,” would, in our opinion, be no substantial ground for the rejection of said revised statutes of Oklahoma. The authorities divide presumptions into conclusive and disputable; and whether the act of the Territory of Oklahoma be the one or the other, it occurs to us is immaterial. If in the courts of that State the presumption would be conclusive and not subject to be rebutted by other evidence, we take it, that no question could be made. If the integrity of the laws could be rebutted by other testimony tending to show the illegality of the law found in said statute book in any respect, such evidence would certainly make a prima facie case, and appellant’s objection to the testimony would be equally untenable. In this State, our statutes published by authority of the State are admissible in evidence of what the law is; but the integrity of the law can still be assailed by showing that the same was not passed in accordance with our Constitution. So, if it be conceded that the act makes “Wilson’s Revised and Annotated Statutes of Oklahoma” only presumptive evidence of the integrity of the laws found in said volumes, and not conclusive, still, in our view, this would certainly afford a prima facie case, and would stand until rebutted.
A more serious question is presented as to the notation found in said volume, to wit: “Last Section. Act. Febraury 14, 1895.” Reference to the record in this connection shows that the horse was alleged to have been stolen on February 22nd, 1903; and it is contended by appellant that said notation not being a part of the law should be rejected, then the only date shown is “Approved, March 16th, 1903,” which being applicable to the entire laws introduced, would show that the law as to theft was only in force at said last date, and would not affect appellant’s case, which occurred on February 22nd preceding; that is, the offense occurred about twenty-four days prior to when it is
shown the Territory had any law on the subject of theft of horses.
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HENDERSObT, Judge.
Appellant was convicted of the theft of a horse in the Territory of Oklahoma, and subsequently bringing the same into McLennan County, Texas; his punishment being fixed at five years in the penitentiary.
Appellant made a motion to quash the indictment, because he claims that the same is for general theft under art. 858 Penal Code, and not theft of a horse under art. 881 Penal Code; and that the indictment contains no value fixed to the property. We have examined the indictment carefully and it is not amenable to the criticism of appellant. As we read it, it is an indictment for bringing a stolen horse into this State ; and by reference to the law of the Territory of Oklahoma, it will be seen that “horses” are made the subject of theft in said territory; that is, in their statute horses are classified, while in our State the genus horse includes a stallion, mare, gelding, etc. On the subject of indictments for offenses of this character, see Morales v. State, 21 Texas Crim. App., 298; McKenzie v. State, 32 Texas Crim. Rep., 568; Cummings v. State, 12 Texas Crim. App., 121; Smith v. State, 37 Texas Crim. App.,
342. Under these authorities we think the indictment is sufficient, and the court did not err in overruling the motion to quash.
On the trial appellant reserved a bill of exceptions to the introduction of the statutes of the territory of Oklahoma on the subject of larceny. We quote portions of said bill, as follows: •
“(2465) Section 546. Larceny is the taking of personal property accomplished by fraud or stealth, and with intent to deprive another thereof.
(2480) Section 561. That if any person shall steal any stallion, mare, colt, gelding, ridgling, or any ass, genet, or mule, or any bull, cow, calf, steer, or stag he shall be guilty of a felony, and on conviction thereof, shall be punished by confinement in the Territorial penitentiary for a term (of) not less than one nor more than ten years.
Last Section. Act. February 14th, 1895.
Which two paragraphs aforesaid, are excerpts from a part of a certain printed volume then and there produced;, entitled, ‘Wilson’s Revised and Annotated Statutes of Oklahoma, 1903. By W. F. Wilson, M.A., LL.B., of the Oklahoma City Bar,’ and which aforesaid volume had printed on the first page thereof, the following:
AUTHENTICATION.
COUNCIIL BILL No. 191.
AN ACT
To make Wilson’s Revised and Annotated Statutes of Oklahoma presumptive evidence of the laws of the Territory. .
Be it enacted by the Legislative Assembly of the Territory of Oklahoma : Section 1. That the two volumes published by the State Capital Company, entitled, ‘Wilson’s Revised and Annotated Statutes of Oklahoma, 1903/ is hereby presumptive evidence of all the laws of the Territory of Oklahoma in force prior to the acts of the Seventh Legislative Assembly and the publisher thereof is hereby authorized to insert on the title page of said work, the words, ‘Published under the authority of the Legislative Assembly of the Territory of Oklahoma.’
Section 2. This act shall take effect and be in force from and after its passage and approval.
Charles R. Alexander,
President.
Wm. Bowles,
Speaker.
Approved March 16, 1903. T. B. Ferguson,
Governor.”
We do not copy the certificate of authentication, as no objection was made to that.
Appellant objected to the introduction of this evidence, because the same did not purport to have been printed under the authority of the Territory of Oklahoma, and because the same did not purport to have been passed as the laws of said Territory, but only purported to be presumptive evidence of the laws of said Territory in force prior to the acts
of the Seventh Assembly; and because it is not shown when the Seventh Assembly was held or otherwise properly fix the date at which time said printed book should be held as presumptive evidence of the laws of said Territory; and because said alleged authority purported to take effect on the 16th of March, 1903, a point of time subsequent to the time which the alleged theft in this case took place, according to the allegations in the indictment, and according to the testimony of the prosecuting witness J. W. Keyes. Appellant further objected to that portion of the evidence at the bottom of sec. 561, to wit: “Last Section. Act. February 14th, 1895,” on the ground that said excerpt was printed in small type, and said excerpt constituted a note, and a notation in and to said purported volumes of statutes; and the same was not a part and did not purport to be a part of the statute law of the Territory of Oklahoma. The certificate of authentication to said laws of the Territory of Oklahoma, being conceded as sufficient, an objection to the introduction of the two sections defining larceny and making theft of horses an offense, cannot be sustained. The fact that the statute of the Territory of Oklahoma only made “Wilson’s Revised and Annotated Statutes of Oklahoma
presumptive
evidence of the laws of the Territory,” would, in our opinion, be no substantial ground for the rejection of said revised statutes of Oklahoma. The authorities divide presumptions into conclusive and disputable; and whether the act of the Territory of Oklahoma be the one or the other, it occurs to us is immaterial. If in the courts of that State the presumption would be conclusive and not subject to be rebutted by other evidence, we take it, that no question could be made. If the integrity of the laws could be rebutted by other testimony tending to show the illegality of the law found in said statute book in any respect, such evidence would certainly make a prima facie case, and appellant’s objection to the testimony would be equally untenable. In this State, our statutes published by authority of the State are admissible in evidence of what the law is; but the integrity of the law can still be assailed by showing that the same was not passed in accordance with our Constitution. So, if it be conceded that the act makes “Wilson’s Revised and Annotated Statutes of Oklahoma” only presumptive evidence of the integrity of the laws found in said volumes, and not conclusive, still, in our view, this would certainly afford a prima facie case, and would stand until rebutted.
A more serious question is presented as to the notation found in said volume, to wit: “Last Section. Act. Febraury 14, 1895.” Reference to the record in this connection shows that the horse was alleged to have been stolen on February 22nd, 1903; and it is contended by appellant that said notation not being a part of the law should be rejected, then the only date shown is “Approved, March 16th, 1903,” which being applicable to the entire laws introduced, would show that the law as to theft was only in force at said last date, and would not affect appellant’s case, which occurred on February 22nd preceding; that is, the offense occurred about twenty-four days prior to when it is
shown the Territory had any law on the subject of theft of horses. Recurring to the act making the volume in which the theft statute admissible in evidence as embracing the laws of Oklahoma, it will be seen, that said act makes Wilson’s Revised and Annotated Statutes of Oklahoma, 1903, presumptive evidence of all laws of the territory of Oklahoma, in force prior to the acts of the Seventh Assembly. Now, the date of the act is a part thereof, and whether it occurs at the beginning or at the end, would make no difference. Here it occurs at the end of section 561. Evidently, the act which was approved March 16, 1903, had reference to the volumes of laws then existing and extant. The approval of March 16, 1903, is only found in connection with the act authorizing Wilson’s Revised and Annotated Statutes to be used as evidence of the laws of said Territory; and does .not, as we construe this matter, embrace or refer to the sections 546 and 561, embodied in Wilson’s Revised and Annotated Statutes. If the laws were already in existence, and the legislature passed an act authorizing Wilson’s Statutes of Oklahoma to be used as evidence, said last mentioned statute would, of course, relate to and cover all pre-existing laws passed prior to the acts of the Seventh Assembly. In other words, in our opinion, the State by the introduction of this evidence, made a prima facie case of the existence of the Territorial Law on the 22nd of February, the date of the alleged offense; and if the law was not really and actually in existence at that time, but came into existence after that, the onus was thrown on appellant to show that fact. Under the authorities of this State, for offenses of this character, it is held that the law of a foreign State or Territory constituting the alleged transaction an offense must be alleged and proved. Carmisales v. State, 11 Texas Crim. App., 474; Hernandez v. State, 25 Texas Crim. App., 538; Clark v. State, 27 Texas Crim. App., 405. This is founded on the proposition that the courts of our State do not take. judicial cognizance of laws of other States. The rule seems to be the same in civil eases. Anderson v. Anderson, 23 Texas, 640; Jones v. Laney, 2 Texas, 342. However, some later Texas civil cases, as to certain character of cases, appear to take a different view, presuming that the laws of the other State or Territory are similar to our own. Stephenson v. Pullman Pal. Car Co. (Texas Civ. App.), 26 S. W. Rep., 112; Paul v. Chenault, 44 S. W. Rep., 682; Blethen v. Bonner, 52 S. W. Rep., 572; Tex. Ry. Co. v. Gray, 65 S. W. Rep., 85. For a further discussion of this subject and authorities, see Amer. & Eng. Ency. of Law, vol. 13, 2nd ed. p. 1058; Green’s Texas Civil Digest, p. 4479, sec. 37. Of course, it will be conceded if we had a statute authorizing our courts to take cognizance of the laws of foreign States, there would be no question as to this matter. If it were an original question, in the opinion of the writer, our courts under these statutes (articles 951, 952, Penal Code) would be required to take cognizance of the laws of the other State or Territory. The laws of such State or Territory constitute a part of the offense to be charged, and in order to be an offense must be read into the law, inasmuch as a
foreign law has to be alleged. The question as to the existence of the foreign law is solely a matter for the court: the judge is required to instruct the jury with reference to the same; and according to my view, the court is required to take cognizance of such foreign law, when it involves an offense in this State and constitutes an essential element thereof. However, as heretofore stated, the authorities hold that a foreign law must be proven; and we hold that it was sufficiently proven in this case.
We do not think the court’s charge is subject to the criticism of appellant, on the ground that it authorized them to convict defendant if he brought the property into Texas, regardless of whether the same was theft in the Territory of Oklahoma. We think a fair construction of the charge shows that the court did require the jury to believe that appellant had committed the theft of the property in the Territory of Oklahoma.
Nor do we agree with appellant in his criticism and endeavor to draw a distinction between the words “fraud,” as used in the statute of Oklahoma, and “fraudulently,” as used in our statute. We believe the effect of the charge was in appellant’s favor, so far as the original theft was concerned, in that the court required the same elements constituting the offense as is required under our statute, whereas, the statute of the Territory appears to have been more liberal towards defendant; that is, less rigorous in its definition of the elements of the offense.
Nor do we think the court’s charge on principals was erroneous. It required the jury to believe that appellant actually participated in the original taking of said horse: otherwise to find him not guilty. We do not believe the jury were misled by this, but they understood the court to mean that he was present and participated in the original taking.
Moreover, we do not believe that the evidence here suggested that the other defendant, who appears to be a mere boy, committed the theft in the absence of defendant. Of course, there might be a case in which the court should more definitely describe what was meant by actual participation in the offense.
Appellant complains that the court gave a charge on recent possession, urging that the same was upon the weight of the evidence. We find no such charge in the record.
While the charge given to the jury as to the assessment of the penalty of lot is subject to criticism, as was said in Bowens’ case, decided at present term, we do not think it sufficient to require a reversal. In our opinion, the court fully covered the issues raised by the evidence in his main charge to the jury, and none of the charges requested by appellant were required to be given.
The judgment is affirmed.
Affirmed.
Davidson, Presiding Judge, absent.