Dugat v. State

148 S.W. 789, 67 Tex. Crim. 46, 1912 Tex. Crim. App. LEXIS 380

• Court: Court of Criminal Appeals of Texas
• Decided: June 5, 1912
• Docket: No. 1663.
• Status: Published

Opinions

HARPER, Judge.

Appellant was indicted, tried and convicted of the offense of theft of- cattle, and sentenced to two years confinement in the penitentiary.

1. The question presented by bill of exceptions Ho. 1 presents the most serious question in the case. Appellant was charged with the . theft of one head of cattle, the property of A. D. Middleton. A. D. Middleton testified that his father was named David Middleton; that _ he was dead, having .died in 1877; that witness was his only heir. That his mother also died in 1877, and neither made any will, and he, being the only child, inherited all the property belonging to his father and mother at the date of their death. He testified to finding a beef in the Ford pasture, leased to appellant. That the beef was originally branded J-f* (J. H. 9) and originally marked £>2>, calling it a swallow fork in one ear, and crop in the other. That when he found the animal in the Ford pasture the brand and mark had been changed, and the brand then was as follows: J/l (J. H. IT—TJ inverted) and the mark $3xa>, it being a swallow fork in one and crop and underbit in the other ear. The State then offered in evidence the brand of David Middleton, being recorded in brand book one of Liberty • County, Texas, the date at the top of the page being January 27, 1875, and on next line below said date being a date December 20, 1875, and then follows ditto marks under this date down to and including Brand Ho. 5, there being no ditto marks after Ho. 5, the brand of David Middleton being Ho. 16, on the line of which David Middleton’s brand appeared being no date of registration, unless the date preceding should govern. When the record of the brand of David Middleton was offered in evidence, being the jr the defendant objected on the following I grounds:

“1st. Because that brand being the brand 'of David Middleton is not evidence of ownership in Archie Middleton of the brand.

2d. Because in the same record of brand book on page 2, Ho. 26, shows the record of another and a different brand being the andiron brand with forks above it as the recorded brand of David Middleton, and because the recorded brand as offered by the State fails to show where on the animal the brand is to be placed—it fails to designate what part of the animal the brand is to be placed upon.

3d. That the introduction of the recorded brand of one party will not prove ownership in another, and because the said David Middleton had more than one brand recorded.”

In approving said bill the court qualifies it thus: “Allowed with the qualification that the J-f* was the only brand that the State put in evidence, and Middleton, the alleged owner, testified he never used any other brand. The grounds of objection are correctly stated in the bill, but I am not willing to endorse ever3rthing contained in the bill as to what the testimony was. The statement of facts will show the evidence, and the exhibit A’ attached to this bill was not a part of the testimony in the case.” The appellant accepts this bill as qualified, and we must accept same as correct.

The first objection is that the record shows it to be the brand of David Middleton and not the brand A. D. Middleton, and is not evidence of ownership in him. If the brand was all the evidence the objection might be tenable, but the court declines to prove the statement of evidence in the bill and refers to the statement of facts, and by reference to that instrument we find that David Middleton and his wife died in 1877, and A. D. Middleton was their only child and heir, and inherited the brand, and he has constantly used the iH brand from the date of the death of his father to the date of the trial in this case. Under this state of facts there was no error in overruling the first objection.

The second objection is, that the brand book shows that David Middleton also had a different brand on record, being the andiron brand with forks above it. The judge in approving the hill declines to approve it as to the facts stated in the bill, and says “Exhibit A” was not a part of the testimony in the case. The statement of facts shows that this brand was not introduced in evidence as stated by the judge, but offered only in connection with the bill of exceptions; it did not go before the jury to be considered by it, but if it had been so introduced, the Supreme Court has held in McCline v. Sheeks, 68 Texas, 430: “It is true that the statute provides that a party shall have but one mark and brand, but this was not intended to prevent a stockman from changing them. The bill shows that the Palo Pinto brand was recorded in 1875, and the Parker County record was not made until 1880. We do not see that the latter record invalidated the former.” In this case, if the latter brand had been introduced in evidence, it should not be held to have invalidated the former record, especially as the testimony shows in this case that has been exclusively used for more than thirty years immediately preceding the trial of this case.

The next objection is that the record fails to show upon what part of the animal the brand was placed. This necessitates a con struction of several statutes. In 1848 the Legislature enacted a law (which is now article 4921 of the Eevised Statutes) that “Every person who has cattle shall have an ear mark and brand differing from the ear mark and brand of his neighbors, which ear mark and brand shall be recorded by the clerk of the county where such cattle shall be; and no person shall use more than one brand, but may record his brand in as many counties as he may think necessary.” This has been the law from 1848 until the present date, except in those counties which by later Acts (the Act's of 1874 and 1876) provided different conditions. In 1874 the Legislature passed an Act (House Bill Ho. 16) entitled “An Act to encourage stock raising and for the protection of stock raisers)” being chapter 38, of the Act's of the Fourteenth Legislature, and in section 20 of that Act it was provided that the place on the animal on which the brand should be placed should be designated, but Liberty County, the county in which this brand was recorded was exempted from the operation of that Act, in section 44, thus leaving the law of 1848 in force in Liberty County. It is true that the same Legislature later in the session in chapter 108 undertook to place Liberty County under the provision of that Act by enacting the following: “Section 1. Be it enacted by the Legislature of the State of Texas, That the provisions of House Bill Ho. 16, “an Act t'o encourage stock raising and for the protection of- stock raisers/ approved March 23, 1874, be and the same is hereby extended to the counties of Liberty, Orange, Chambers and Jefferson.” By reference to those Acts it will be seen that it was section 44 of House Bill Ho. 16 that this later Act undertook to amend, and by the later Act, the first Act nor the section thereof • sought to be amended was not reenacted, but it was sought to amend a certain section by reference to the number and title of the bill. This was prohibited by section 18 of article 12 of the Constitution of 1869, which was then in force, said section of the Constitution reading as follows: “Ho law shall be revised or amended by reference to its title;, but in such cases, the Act revised, or section amended shall be reenacted and published at length.” It is thus seen that chapter 108, which undertook to place Liberty County under the provisions of chapter 38 • was unconstitutional and invalid, for it did not reenact the entire law nor the section which it sought to amend, but simply referred to the Act by its title, thus leaving Liberty County under the provisions of the law of 1848, and the brand being recorded in 1875, was properly and legally recorded under the Act of 1848.

In the brief it is insisted that one section of the Act of 1848 (being now article 4929 of the Eevised Statutes) made it the duty of the county clerk to note the date on which the brand is recorded. In this case the date does not appear on the line on wdiich the brand is recorded, but by the bill of exceptions it is shown, that the date preceding this line is December 20, 1875, and after this lapse of time it will be presumed that this date is the dat'e of record of all brands in the book until the next date occurs in the book. If this were not true, the rights of the owner of the brand could not' be affected by the failure of the clerk to place the date there when the owner had complied with what the law required him to do as set forth in article 4921, where no other person was asserting claim to this brand by a record thereof. Sufficient data was placed on the record to inform the public and place them on notice that David Middleton was the owner of the stock of cattle in that brand. The statutes require that the clerk shall place on a deed the date it is filed for record, and record and index the deed. If the clerk in recording the deed should fail to record the date of its registration, no one would seriously contend that this would render invalid the record of the deed, or that the record thereof was inadmissible in evidence. In one instance, the law required the deed to be placed of record to give all notice; in the other it required the brand to be recorded for the same purpose, and if the clerk had failed to place the date of record, it would not have rendered the record inadmissible in evidence. We have carefully reviewed all the laws passed in regard to stock raising since 1874, and find that Liberty County was placed under the provisions of chapter 165 of the Acts of the Fifteenth Legislature, approved August 23, 1876, yet it was exempted from the operation of that law by chapter 130 of the Acts of the Regular Session of the Sixteenth Legislature, approved April 22, 1879, and has been exempt from the provisions of that law since said date, thus in 1879 coming again under the general law of 1848, which law is now and was at the date of this trial in force in Liberty County, and by the provisions of that law (now article 4939 of Rev. Stat.) brands recorded by the officers named in the law of 1848 are admissible in testimony as evidence of ownership, and the court did not err in admitting the testimony, nor in refusing the special charge instructing the jury not to consider the record of this brand as any evidence of ownership. Appellant cites many cases decided by this court, holding that brands of record which do not show the part of the animal on which the brand is placed is inadmissible in testimony as evidence of ownership. That is a correct rule of law in those counties embraced in the provisions of the Acts of 1874 and 1876, because it is so provided in those Acts, but in counties which are not embraced, but by the terms thereof specifically exempted from the provisions of the Acts of 1874 and 1876, such rule does not prevail, but the rule as announced in the Act of 1848 prevails, because that is the law in force in those counties. Section 23 of article 16 of the Constitution of 1876, provides the Legislature may pass laws for the regulation of live stock and the protection of stock raisers in the stock raising portion of the state, and exempt from the operation of such laws other portions, sections or counties. The Legislature in it's wisdom having seen proper to exempt Liberty County from the operation of the stock laws. as passed in 1874 and 1876, we are not authorized to seek to enforce any portion of said laws in said county.

2. Neither did the court err in permitting A. D. Middleton to testify that his father and mother were dead, and had died in 1877, and he was the sole child and heir, and inherited all the property, in which was included this brand and all cattle owned by his father, and that he had kept this J-P up since that date, and it was the only brand he used.

3. These are all the bills of exception reserved to admitting and excluding testimony, and we can not consider the grounds in the motion for a new trial in regard to other testimony, nor can we consider the ground complaining of the refusal of the court to grant a continuance, there being no bill reserved. (White’s Ann. Proc. Sections 645, 851 and 1123.)

4. The first three special instructions requested were peremptory instructions and the court did not err in refusing to give them, and we have passed on the question raised by special charge No. 4 (see article 4930, Rev. Stat.). The only other special charge in the record is one requesting the court to instruct the jury that if they believed that the animal was found in the Ford pasture, and they further believed that Floyd Dugat and others had an equal right with appellant to use the pasture, the fact that the animal was found in the pasture. should not be considered as tending to establish the possession of the alleged stolen animal in appellant. The animal when found was found branded in appellant’s brand, he owning the J/) brand, and the testimony of the State showed that Middleton?s J-f* brand had been recently changed to J/). The testimony further showed that appellant kept his cattle in this Ford pasture, and that he had been in and around this pasture two or three "days, just a short time before the animal was found in the pasture. This being a case of circumstantial evidence, the circumstance that the the animal ■ was found in a pasture leased by him, was admissible to be considered with other circumstances in the case, and the • court did not err in refusing the special charge. Buckley’s Crim. Digest, Title One, subdiv. 7; Noftsinger v. State, 7 Texas Crim. App., 301; Cooper v. State, 19 Texas, 450; Langford v. State, 17 Texas Crim. App., 445.

5. A verdict which reads: “We the' jury find the defendant guilty as charged in the indictment,” and assess his punishment at two years in the penitentiary, is not unintelligible or vague. McGee v. State, 39 Texas Crim. Rep., 380, and section 840 Branch’s Crim. Law.

6. Appellant complains that the court in his charge fails to instruct the jury that an animal running on the range would be in the owner’s possession, and to take it from the range would be taking it from the possession of the owner. The alleged owner, Mr. Middleton, ' testified that his cattle runs in Chambers, Jefferson and Liberty Counties, but the principal part of them ranged in Chambers County. The Ford pasture, in which the animal was found, is in the lower edge of Liberty County, and within a half mile of the Chambers County line, and testifies he had cattle running near there, and on direct examination he testified he and the sheriff and others found two head of his cattle in the Ford pasture, the brand on both having been changed from J-f* to J/l and the marks had been changed; that these changes had been recently made. Article 235 of the Code of Criminal Procedure provides that where property is stolen in one county and carried off to another by the offender, he may be prosecuted either in the county where he took the property, or in any county through or into which he may have carried the same. The pasture in which the animal was found being in Liberty County, and the prosecution being had in Liberty County, it would be immaterial whether the animal was taken in Liberty, Jefferson or Chambers County. And it is the law of this State that animals on their accustomed range are in the possession of the owner, and one who takes an animal from the range takes it from the owner’s possession. (Cameron v. State, 44 Texas, 652; Jones v. State, 3 Texas Crim. App., 498; McGrew v. State, 31 Texas Crim. Rep., 336; White’s Ann. Code, section 1507, subdiv. 5.) In this case, no other person was claiming possession or ownership of this brand or cattle in this brand; the evidence shows that defendant was in the community where Ford pasture is situated on July 3d and remained there until July 9th, and that during that time he was in the Ford pasture; that he and he alone claimed cattle in the jrt brand, and this animal had its brand changed to that when found in the Ford pasture on July 12th. The witnesses Middleton, Mayes, Ben Brown, John Brown and others all testify that they were experienced cattlemen, and that the changes in the mark and brand on the animal had been made in from seven to ten days, and under these circumstances it was not error for the court to fail to charge that it must have been taken from its accustomed range, for there was no evidence that cattle in the brand ranged anywhere else than in the territory testified to by Mr. Middleton.

7. In the testimony for the State, it was shown that two head of cattle claimed by Middleton were found in the Ford pasture at the same time, July 12th, while this indictment charged the theft of only one head of cattle. The defendant introduced in evidence another indictment against him for the theft of one head of cattle, and the court in his charge limited the jury in this case to passing on the question whether or not he took the black beef steer testified to by the witnesses. In this there was no error. The court instructed the jury: “You are further charged that the testimony of the witnesses as to other cattle found in the pasture under the defendant’s control, to wit: the Ford pasture—in the mark and brand the same as the witnesses state was the mark and brand of the black beef in question (if you find and believe there was such other cattle in ■ such mark and brand) was offered in evidence upon the question of intent only, and the defendant can not be convicted for the taking of such cattle (2 he did take such cattle) no matter what the facts maybe as to such other cattle.”

Appellant insists that this was upon the weight of the testimony, in that it instructed the jury that the Ford pasture was in appellant’s control. The testimony, and all the testimony, shows this to be the fact. The owner of the pasture testified he leased it to appellant, and no other person, and the testimony of appellant only shows that he permitted others to place cattle in the pasture, but they were in there by his permission and he had the right to permit or exclude, consequently it was in his control, and it has been frequently held by this court that for the trial court to assume a fact that is undisputed in the evidence is not error. (Byrd v. State, 53 Texas Crim. Rep., 508; Romero v. State, 56 Texas Crim. Rep., 437; Sebastian v. State, 44 Texas Crim. Rep., 509; Shields v. State, 38 Texas Crim. Rep., 252.)

8. The only other criticism of the charge is that the court erred in failing to limit the purposes for which the testimony with reference to defendant having been indicted in other eases could be used by the jury. The evidence shows that defendant on direct examination had testified that he was indicted in Jefferson County and he introduced the indictment in the other case in Liberty County, thus being the person who first brought these other offenses in evidence. The question of whether evidence of extraneous crimes should be limited in the court’s charge is one that has been frequently discussed by this court, and we frankly state that its holding has not always been uniform. In the case of Carroll v. State, 58 S. W. Rep., 340, Presiding Judge Davidson held in an opinion concurred in by all the court:

“Appellant was convicted of arson, and his punishment assessed at confinement in the penitentiary for a term of five years. Appellant while confined in jail set fire to and sought to burn the jail. During the trial it was proved that appellant was incarcerated under a charge of burglary. The only ground of the motion for new trial is a criticism of the charge for failing to limit the effect of this evidence to t'he impeachment of appellant’s credibility as a witness, it is only necessary to limit this character of evidence when there might be danger of its being used injuriously to defendant, or for the purpose of convicting him of an offense for which he was not on trial. The case is a very clear one, fully proved, and the punishment the lowest authorized by statute. We see no reversible error in this matter. Wilson v. State, 37 Texas Crim. Rep., 374, 39 S. W., 373; Moseley v. State, 36 Texas Crim. Rep., 578, 37 S. W., 736, 38 S. W., 197; Deeper v. State, 29 Texas App., 63, 14 S. W., 398.’ In Moseley v. State, 36 Texas Crim. Rep., 578, 38 S. W., 197, he again holds: ‘Appellant also complains that the trial court erred in failing to restrict to its legitimate purpose the testimony introduced on the trial, that the saddle and bridle taken with the stolen horse, and which were on the horse at the time he was taken, could only be used for- the purpose of estab lishing the identity, in developing the res gestae of the offense, to show the connection of defendant therewith, or the intent with which he acted in regard to the horse. It has been held that with reference to this character of cases the charge should usually be given, hut it is not absolutely necessary to be given, unless the character of the property stolen contemporaneous with the theft charged is such that the jury might convict for that offense. But there is no danger of a conviction for stealing a saddle and bridle under a charge of theft of a horse, or receiving said horse after it was stolen.’ See also Thompson v. State, 55 Texas Crim. Rep., 120, 113 S. W. Rep., 536; Waters v. State, 54 Texas Crim. Rep. 327, 114 S. W. Rep., 628; Schwartz v. State, 53 Texas Crim. Rep., 451, 111 S. W. Rep., 399; Watson v. State, 52 Texas Crim. Rep., 90, 105 S. W. Rep., 509; Poyner v. State, 40 Texas Crim. Rep., 640, 51 S. W., 376; Givens v. State, 35 Texas Crim. Rep., 563; Blanco v. State, 57 S. W. Rep., 828; Magee v. State, 43 S. W. Rep., 512; Robinson v. State, 63 S. W. Rep., 870; Newman v. State, 70 S. W. Rep., 953.”

In fact, after a thorough discussion of this question the rule finally adopted seems to be tersely stated in Branch’s Grim. Law, section 873, where it is held, “if the testimony can only be used to impeach a witness it is not necessary to charge on the subject at all,” citing many authorities. In this case the court limited a conviction to a question of whether appellant “took one head of cattle—the black beef steer testified to by witnesses,” and the record being in this condition, this question does not present reversible error.

The judgment is affirmed.

Affirmed.