
    McKNIGHT et al. v. STATE.
    (Court of Criminal Appeals of Texas.
    May 14, 1913.)
    1. Larceny (§ 32) — Indictment — Ownership — Property Subject to Lien of Bailee.
    Where the owner of cattle placed them in the pasture of one J., who under Rev. Civ. St. 1911, § 5664, had a lien thereon for pasturage, J. was the special owner as against the real owner, and an indictment for their theft should have alleged ownership. in J. or real ownership in the owner and special ownership in J.
    [Ed. Note. — Eor other cases, see Larceny, Cent. Dig. §§ 81-92, 99; Dec. Dig. § 32; Indictment and Information, Cent. Dig. §§ 281, 282.]
    2. Criminal Law (§ 772) — Instructions — Venue.-
    In a prosecution for the theft of cattle, where the question of defendants’ possession in the county where the indictment was found was fought out before the jury on the facts, a charge failing to submit such issue was reversible error.
    [Ed. Note. — Eor other cases, see Criminal Law, Cent. Dig. §§ 1812-1814, 1816, 1817; Dec. Dig. § 772.]
    3. Criminal Law (§ 792) — Instructions— —Principals.
    In a prosecution for the theft of cattle, where it was in issue whether defendants were so connected with the original taking as to be principals, the jury should have been appropriately instructed thereon.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 1818-1S20; Dec. Dig. § 792.]
    4. Larceny (§ 75) — Instructions—Possession.
    In a prosecution for the theft of cattle, where it appeared that defendants were both acting as hired hands for the owner of the herd into which the stolen cattle had gotten and had no interest in the cattle themselves, the jury should have been appropriately instructed as to its bearing on their possession.
    [Ed. Note. — Eor other cases, see Larceny, Cent. Dig. §§ 190, 198; Dec. Dig. § 75.]
    5. Criminal Law (§ 371) — Evidence—Other Oeeenses.
    In a prosecution for the theft of cattle, evidence that, when defendants were making up a herd to drive for shipment, they saw strange cattle and turned them from one part of the pasture into another so as to prevent their mingling with the herd was inadmissible upon the theory that defendant, the son of the owner of the herd, had stolen them, in the absence of anything showing contemporaneous and fraudulent acts in connection with those cattle.
    [Ed. Note. — Eor other cases, see Criminal Law, Cent. Dig. §§ 830-832; Dec. Dig. § 371 ; Larceny, Cent. Dig. § 131.]
    6. Criminal Law (§§ 763, 764) — Instructions — Weight oe Evidence.
    In a prosecution for the theft of cattle, an instruction that, if they were stolen as charged and found in the possession of defendants shortly thereafter, such possession and its explanation, if any, would be proper for the consideration of the jury on the guilt or innocence of the defendants under all the circumstances was objectionable as .a charge on -the weight of the evidence.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 1731-1748, 1752, 1768, 1770; Dec. Dig. §§ 763, 764; Larceny, Cent. Dig. § 184.]
    7. Criminal Law (§ 770) — Instructions— Innocence of'Accused.
    Such charge was also objectionable as authorizing the jury to weigh the evidence in determining the innocence of defendants, since it is the guilt and not the innocence that is to be determined under such circumstances.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. § 1806; Dec. Dig. § 770.]
    8. Criminal Law (§ 549) — Evidence—Explanation.
    Exculpatory or reasonable explanation showing innocence must be shown false, and it may be viewed or weighed in the light of all the facts and its falsity so determined.
    TEd. Note. — For other cases, see Criminal Law, Cent.Dig. §§ 1249, 1251; Dec.Dig. § 549.]
    9. Criminal Law (§ 815) — Instructions— Ignoring Evidence.
    In a prosecution for the theft of cattle, where defendant explained that he did not know the cattle were in the herd he was driving until they were pointed out to him, and did not claim them, an instruction that, if the cattle were stolen as charged and defendant was found in possession thereof, such possession and its explanation, if any, might be considered on the question of guilt was erroneous as not submitting defendants’ phase of the case.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 1922, 1986; Dec. Dig. § 815.]
    10. Witnesses (§ 345) — Impeachment — Another Indictment Arising prom Same Transaction.
    In a prosecution for the theft of cattle, evidence against one of the defendants to the effect that he had been indicted in another state for the theft of the same cattle described in the indictment in the case was inadmissible, even for the purpose of impeachment.
    [Ed. Note. — For other cases, see Witnesses, Cent. Dig. §§ 1126-1128; Dec. Dig. § 345.]
    Appeal froDi District Court, Childress County; D. E. Decker, Judge.
    Virgil McKnight and another were convicted of theft of three head of cattle, and they appeal.
    Reversed and remanded.
    Howard & Barrett and M. J. Hathaway, all of Childress, and Walter E. Latimer, of Sulphur, Okl., for appellants. C. E. Lane, Asst. Atty. Gen., for the State.
    
      
      Eor other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep’r Indexes
    
    
      
      For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep’r Indexes
    
   DAVIDSON, P. J.

The indictment charges appellants with theft of three head of cattle, the property of J. S. Pritchard.

Reversal is urged because the evidence shows ownership in D. H. Jeeter. The cattle were placed in Jeeter’s pasture by Pritchard in May, where they remained until their disappearance about the 28th of October. Jeeter saw them In his pasture on the afternoon of October 26th. The evidence by Pritchard and Jeeter is to the effect that Pritchard owned the cattle and placed them in Jeeter’s pasture for pasturage purposes in May. He was to pay Jeeter 25 cents per head a month for keeping the cattle. • Jeeter was to look after them, take care of them, and, if they got out, get them back into the pasture. At the time the cattle were taken or disappeared from his pasture, Pritchard had not paid the pasturage, for which Jeeter had a lien on the cattle. Under these circumstances Jeeter was the special owner as against Pritchard, the real owner. Article 5664 of the Revised Civil Statutes gave Jeeter a lien on the cattle for the pasturage, and Pritchard could not take his cattle until this pasturage had been paid. If Pritchard had taken the cattle surreptitiously with intent to defraud Jeeter of the pasturage, he could even have been charged with the theft of the cattle from Jeeter under the terms of article 1335 of the Revised Penal Code. The real ownership could have been alleged in Pritchard and special ownership in Jeeter, but this was not done. Ownership was alleged only in Pritchard. Under all of our authorities, ownership should have been alleged in Jeeter. Of course, as before stated, real ownership could have been alleged in Pritchard and special ownership in Jeeter. Taylor v. State, 62 Tex. Cr. R. 611, 138 S. W. 615; Littleton v. State, 20 Tex. App. 171; Frazier v. State, 18 Tex. App. 434; Bailey v. State, 18 Tex. App. 430; Alexander v. State, 24 Tex. App. 127, 5 S. W. 840; Branch’s Criminal Law, § 785, for collation of cases; Honea v. State, 56 Tex. Cr. R. 278, 119 S. W. 851; Bryan v. State, 54 Tex. Cr. R. 59, 111 S. W. 1035. On this ground this judgment must be reversed.

The question of venue was a serious One and was as an issue fought out on the trial. Appellants’ contention was that venue was not shown in Childress county, and the only testimony connecting appellants with the possession of the cattle was in Oklahoma. There is no direct evidence that appellants were ever in possession of the cattle in Childress county, nor even in Texas. The state proved by Weatherly that on the evening of the 28th, in Oklahoma, about a mile or more beyond the Texas line, he approached a herd of cattle of 100 or more in possession of appellants. These cattle were being driven by appellants to Hollis, seven or eight miles beyond the Texas line in Oklahoma, for the purpose of shipment. They were the property of Mrs. J. B. McKnight, and in them appellants had no interest except as hired hands. Elmore was the hired hand of Mrs. McKnight at $20 a month, and had been since the previous June. Appellant McKnight was only assisting his mother at her request in regard to her cattle and any of her interests; she being a widow. At her request he went with these cattle for the purpose of shipping them to Kansas City for sale. The shipping contract reserved the right to unload them at Wichita, Kan., for selling purposes; they were sold at Wichita, and the returns made to Mrs. McKnight. The amount of sale to her credit was about $1,946 or $1,947. The state’s contention evidently must have been that appellants had the cattle in Childress county because they were in possession of the cattle in Oklahoma within a mile or mile and a half of the Texas line. There is also evidence in the record that after crossing the Texas line some “loose cattle” got into the herd, and the facts show “loose cattle” were in the habit of getting in herds being driven as this herd was, and often gave the owners of the herds trouble in cutting- them out. This was all the direct evidence of appellants’ possession of the cattle. That they may have been in the herd driven from Mrs. McKnight’s ranch would -be but an inference or deduction from the possession in Oklahoma. How these cattle got out of Jeeter’s pasture the record is' silent. They were there on the evening of the 26th, which was Saturday. They were in the herd driven by appellants in Oklahoma on the evening of the 28th, two days later. Appellant McKnight proved a complete alibi, including Friday, Saturday, Sunday, and Monday, so far as Jeeter’s ranch was concerned, and the state offered no evidence to controvert this. No testimony was introduced to show that Elmore was ever off Mrs. McKnight’s ranch at any time; the evidence is to the effect that he was her employe or hired hand, and worked about the place. The distance from Jeeter’s place to Mrs. McKnight’s was something like seven or eight miles. There was opportunity for the cattle to have escaped from Jeeter’s pasture. There is also evidence, which seems to be uncontroverted, that appellant McKnight did not handle him mother’s stock, except occasionally at her request to assist her, and that two of his sisters managed, controlled, and handled generally the cattle of Mrs. McKnight. The contention of appellants is that, inasmuch as that was a serious question and fought out before the jury on the facts, the court’s charge was not sufficient in failing to submit this issue to the jury. We are of opinion that this contention is correct.

Germane to this matter and closely related to it were two other questions: The first is the appellants, in order to be guilty, must have been connected with the original taking in such manner as to make them principals; and the other is that they were both acting in the capacity of hired hands for Mrs. McKnight, they having no interest in the cattle themselves. Neither of these questions were submitted to the jury, but should have been. Upon another trial the jury should be appropriately instructed upon both issues. These were very prominent issues under the facts.

Over the objection of the appellants the state was permitted .to show that on the morning of the 28th of April some 12 or 15 head of cattle were seen in what was called the- eastern pasture belonging to Mrs. J. B. McKnight. They were observed by the witnesses approaching the pen where the cattle were being “cut”; that is, separated in order to make up the herd of cattle for shipping purposes. They were approaching from the southeast direction and became the subject of discussion among the hands in the pen who were cutting the cattle as above stated. Inasmuch as the cattle to be shipped had to be driven through the eastern pasture in order to reach Hollis, it was decided to turn this bunch of 12 or 15 head of “strange cattle” from the eastern pasture into the western pasture; these pastures were separated by a fence. There was anticipated trouble if the 12 or 15 head of strange cattle were left in the eastern pasture of their mingling with the herd when they started with them to Hollis, therefore, either under the direction of appellant McKnight, or with his assistance, and for the reason stated, these 12 or 15 head of cattle were turned into the western pasture. Later on these cattle were claimed by other people and carried away. The evidence in regard to these cattle was permitted to go to the jury upon the theory that appellant McKnight had stolen them. He disclaimed having any knowledge of their presence in the pasture of how they got there. He was subsequently, however, indicted for the theft of those cattle, but the case was dismissed by the district attorney. Upon another trial this evidence should not go to the jury, unless the state can in some way connect appellant with these 12 or 15 head of cattle, and further show that that connection was fraudulent. Contemporaneous theft is sometimes admissible under certain circumstances, which is unnecessary here to discuss; but, before this character of evidence is admissible, the acts must not only be contemporaneous but must be fraudulent; the mere fact that appellant saw cattle in the pasture and turned them from one pasture to another would not of itself place-him in fraudulent possession of the property. The cattle were already in his mother’s pasture at the time of the discovery, and, as far as this record is concerned, that was the first intimation he had of the presence of the cattle in his mother’s pasture. The admission, under thé circumstances, of this testimony was erroneous.

Complaint is made of the charge on possession of the three head of cattle. We think this criticism is correct. The charge informed the jury that possession alone was not sufficient to justify the conviction, but the jury could weigh it as a circumstance with other established facts in determining whether the accused was guilty of the offense or not. “If, therefore, the three head of cattle were stolen as charged, and defendants were found in possession of said cattle recently after the theft, then this possession and explanation, if any, of such possession would be proper for the consideration of the jury-in determining the guilt or innocence of the defendants as they might think the same entitled to under all the facts and circumstances in the case. This charge was on the weight of the evidence, and further instructed the jury also that they could weigh it in determining the innocence of the appellants.” This is not correct. It is the guilt and not the innocence to be determined under such circumstances. It will he observed that this is not a charge on reasonable explanation or the possession of property said to have been recently stolen. If it was so intended it did not cover that question. Exculpatory or reasonable explanation showing innocence must be shown false, otherwise an acquittal would follow. Of course, this explanation can be shown to he untrue, and it is further true that it may he viewed or weighed in the light of all the facts, and its falsity thus determined. Appellant MeKnight’s explanation was that he did not know the cattle were in the herd until pointed out to him. He did not claim the cattle, and was only driving and shipping them for his mother. This phase of it was not even submitted to the jury in .the charge; nor was a charge given with reference to unexplained possession. It is unnecessary to go further into this matter. The charge was incorrect and did not fit the facts in the case.

Another question, the court permitted to be introduced against defendant McKnight the fact that he was indicted in Hollis, Okl., for the theft of the three cattle set out in the indictment in this case. This was not admissible against him even for the purpose of impeachment. That charge was for the identical cattle set out in this indictment. It involved the same transaction, the identical matter. It would have been as correct and proper, legally speaking, to permit the state to introduce the indictment in this case for impeachment purposes as that found in Hollis, Okl. The two indictments were for the same cattle. This would not be permissible. Application for continuance is not discussed. The witness may appear at another trial.

For the errors indicated, the judgment is reversed, and the cause remanded.  