ALFORD v. THE STATE

Joseph Jones, for appellant, contended: 1. That there was a fatal variance between the allegation and proof as to ownership. His contention upon this proposition was, that inasmuch as defendant was charged with altering brands, the rule as it obtained in cases of theft, as to what constituted possession, viz., "possession, care, control, and management of the property," did not apply, because in theft such possession was synonymous with title and ownership; whilst, on the other hand, mere possession, charge, and control of cattle does not make such person owner of the brands upon such cattle, because the brands, in order to be evidence of ownership, must be recorded, and when so recorded are the best notice of ownership thereof; and the rule that the person in "possession, charge, and control" would be more likely to be viewed as the actual owner than the real owner, is lost, as well as the reason therefor. Penal Code. arts. 729, 760; Frazier v. The State, 18 Texas Ct. App. 441[ 18 Tex. Crim. 441]; Code Crim. Proc., art. 426; Rev. Stats., arts. 4556, 4560, 4561.

To illustrate: Suppose that Aaron was in possession, charge, and control of the Roach cattle, and, in contemplation of article 426, Code of Criminal Procedure, the owner thereof, and at the same time was the actual owner of a brand and cattle of his own, and that he should consent that some one should alter the brand upon the Roach cattle to resemble that of his own. The party thus altering the brand would not be liable under article 760, Penal Code, because if article 426, Code of Criminal Procedure, applies in this case, it invests him with power to consent. This could hardly have been intended by the Legislature.

Again, we say that this method of prosecution deprives the defendant of his constitutional right to demand the nature and cause of the accusation against him, inasmuch as the person in control may represent various persons in the same capacity, for the same purpose, and at the same time. The indictment does not allege possession, but simply ownership; the proof does not show possession, but simply care, control, and management. Has the defendant been apprised of what he was called upon to answer? Could he plead a judgment in such a case in bar of any other prosecution for the same offense?

2. An animal while trespassing upon the enclosure of another is not upon its accustomed range in contemplation of law, and the presumption of law that such animal is in possession of its owner can not be indulged with reference to it, and more especially where the alleged ownership depends upon possession for its very existence.

The evidence shows that if defendant ever altered the brands upon any cattle, that they were within the enclosure of Dewees, which was under the exclusive control of Oscar George, and that Aaron, the alleged owner, had no control thereof. Defendant asked special instruction upon this phase of the case, which was refused by the court.

3. With regard to Mrs. Davis' testimony, we think she was clearly an accomplice; and if so, it was of vital importance that the law upon this issue should have been clearly and correctly explained to the jury; and the verdict can only be attributable to the failure to charge upon this issue. We submit the proposition upon the authority of Phillips v. The State, 17 Texas Ct. App. 174[ 17 Tex. Crim. 174].

In his brief and argument on motion for a rehearing (which was overruled), counsel contended that the court should have reversed the judgment, because the court below erred in permitting the witness Roach to testify, as shown by his bill of exceptions No. 4, as follows: "That in May, 1889, he received information that some of his cattle were in Mexico, and that he went there and found, in a herd that the Mexicans had, two or three cows that he recognized as his, that had originally been branded and upon which the brand had been changed so that it appeared thus ; that he saw these cattle, at a point about twenty miles below the Dewees pasture, on the opposite side of the river in Mexico; that said cows were thus branded, the brands on some having peeled off, and none had haired over, and to his judgment had been put on not more than three or four months; that there was one cow in particular which he recognized as one which he had bought in Louisiana, and which had been on the Texas side of the Rio Grrande."

This testimony was objected to at the trial, because there was no evidence to show defendant's connection with these cattle, or that they were some of the cattle which the witness Mrs. Davis had testified about; nor was there anything to show that the brands of these cattle had been altered at the same time and place as were the brands of the cattle for which he was being prosecuted. "The admission of illegal evidence upon an important fact, material and pertinent to the issue, and which is additional to other facts legally in evidence, is erroneous; and a conviction will not be permitted to stand, however certain it may be that the jury would have found a verdict of guilty upon other sufficient evidence adduced upon the trial." McWilliams v. The State, 44 Tex. 116; Haynie v. The State, 2 Texas Ct. App. 174[ 2 Tex. Crim. 174]; Bigby v. The State, 5 Texas Ct. App. 102[ 5 Tex. Crim. 102]; Cox et al. v. The State, 8 Texas Ct. App. 304[ 8 Tex. Crim. 304]; Fulcher v. The State, 28 Texas Ct. App. 473[ 28 Tex. Crim. 473].

"The defendant must be connected in some way with extraneous facts and circumstances which are admitted in evidence against him, and unless so connected their admission should constitute reversible error." Nixon v. The State, ante, p. 205. But if such evidence was admissible under any of the established rules, it then became the duty of the judge to instruct the jury as to the purpose of the same, which was not done. Kelley v. The State, 18 Texas Ct. App. 269[ 18 Tex. Crim. 269].

No brief for the State on file in the record.