Nutt v. State

19 Tex. 340

• Court: Texas Supreme Court
• Decided: July 1, 1857
• Status: Published

Opinion

Wheeler, J.

It does not appear that the witness’s knowledge of the ownership of the animal depended upon his knowledge of the brand. The animal had been left in his charge by the owner ; and his knowledge, thus derived, was certainly sufficient to enable him to testify, as he did, to the ownership of such an animal. What was said about the brand was doubtless induced by the statement of the defendant to the witness ; and it was immaterial whether the brand was the one thing or the other. It was not necessary to prove a brand ; it was sufficient that the witness knew and testified to the ownership of the animal.

If, as counsel for the appellant suppose, the indictment had been founded upon article 520 of the Digest, it would have been necessary to aver and prove “ the intent to injure the owner ” of the animal; as that is made by the Statute an ingredient in the offence there defined. But the indictment was founded upon Article 560 of the Digest, which defines the offence differently, and prescribes a different and a milder punishment. Under the provision of that Section of the Statute, the intention to injure the owner is not an ingredient in the offence ; and consequently need not be averred or proved. The charge of the Court therefore was correct; and it was right to refuse the instructions asked.

It was a matter addressed to the discretion of the Court, whether evidence of the value of the animal should be received after the evidence was closed ; and the admission of it is not a ground for reversing the judgment.

Judgment affirmed.