West v. State

32 Tex. 651

• Court: Texas Supreme Court
• Decided: July 1, 1870
• Status: Published

Opinion

Denison, J.

This is an indictment charging the appellant with altering the brand on certain cattle, the same not being his own property, without the consent of the owner, and with intent to defraud. There were verdict and judgment against appellant.

Appellant, by his counsel, assigns many errors in the record, one only of which will be referred to, it being deemed sufficient .to warrant a decision reversing the judgment.

The court charged the jury as follows : “In order to sustain the charge in this case, the want of the consent of the owner must be proven; but that may be proven by the direct and positive declarations of the owner or others, or by circumstances that would convince the jury that the act was done without the consent of the owner.”

This charge includes two distinct propositions in the alternative, the first of which is manifestly erroneous, and calculated to mislead the jury, by giving them to understand that the mere declarations of the owner, or of others, would be legal and sufficient evidence of the fact to be proved, i. e., the want of the consent of the owner. We cannot determine what influence this erroneous charge may have had in leading the jury to the conclusion they arrived at and the verdict they rendered.

This error is apparent on the record, and therefore it is •unnecessary to discuss the other points raised by counsel.

The judgment is reversed.

Reversed.