
    McGOWAN v. STATE.
    (No. 6113.)
    (Court of Criminal Appeals of Texas.
    March 23, 1921.)
    1. Larceny <&wkey;7 — Special ownership of hog stolen continued only during actual control of animal.
    Where the owner of a hog hid placed it with a third person for a week for breeding purposes, and the hog was stolen, if such third person was a special owner, that relation would continue only while he had actual care, control, and management of the animal.
    2. Larceny <&wkey;32(5) — Where special owner had lost control of animal, ownership may be alleged to be in general owner.
    Where an owner of a hog placed it with a third person for a week for breeding purposes, and it was stolen during such time, but it appeared that the animal escaped or was taken from such third person by another than the defendant, the special owner had lost control of the animal, and an averment that the ownership was in the actual owner was proper.
    3. Larceny' <&wkey;64(5) — Evidence insufficient to sustain conviction of stealing hog.
    In a prosecution for stealing a hog which had been placed in possession of a third person for breeding purposes, circumstantial evidence, tending to show that a hog of similar description to that stolen had been seen in defendant’s possession, held insufficient to sustain a conviction.
    4. Larceny <&wkey;73 — Refusal to instruct that defendant should be acquitted unless hog taken belonged to the alleged owner held error.
    ■ In a. prosecution for stealing a hog which had been left in the care of a third person, it was error to refuse to instruct that, unless the hog taken by defendant belonged to the alleged owner, an acquittal must result, although the jury might believe that the owner had lost a hog of the same description.
    Appeal from District Court, San Jacinto County; J. D. Manry, Judge.
    Napoleon McGowan was convicted of the theft of a hog, and he appeals.
    Beversed and remanded.
    J. M. Hansbro, of Cold Springs, and Garrison, Pollard, Morris & Berry, of Houston, for appellant.
    B. H. Hamilton, Asst. Atty. Gen., for the State.
   MOBBOW, P. J.

The state relies on circumstantial evidence. Perry was the owner of a white sow weighing about 100 pounds, which was placed by him in the latter part of January with one McMurrey to remain for a week for breeding purposes. On returning a week later, the hog was missing, and a search failed to disclose her whereabouts. Some three weeks later Perry caused the arrest of the appellant, and there was found in his possession certain hog meat, which Perry manifestly believed was that of his hog, but which he admittedly was unable to identify as such. The sheriff accompanied him, and both testified, describing the meat as such as would have come from a hog of the weight of the one missing, and, upon the meat in places there was white hair. On other places, however, the skin had been scraped so clean that they were unable to determine whether all the hair on the hog had been white or otherwise. The head of the hog was not found, nor was there found evidence of recent slaughter further than that the meat appeared fresh and had blood about it. Perry’s hog was not marked nor described otherwise than above, save that it was not of the common breed of hogs which were generally running on the range in that community.

It was proved that a few days after Perry’s hog was placed in McMurrey’s possession a white hog or sow of about the\ same size unmarked, came into the possession of the appellant. This sow, it seems, came to the residence of a witness named Mitchell, who was also indicted for the same offense and others. Appellant took the hog from Mitchell’s premises, declaring at the time that it belonged to him. Mitchell claims to have told him that it might be Perry’s hog, to which the appellant replied that, “Perry was hot the only man that owned white hogs.”

The state introduced appellant’s declaration claiming ownership at the time he took possession. Mitchell claims that appellant afterwards told him that Perry had come to his house looking for his hog, and that subsequently appellant had killed the hog which was in his possession. Perry's visit to the appellant’s house was about four weeks after he left the hog with McMurrey.

The appellant insists that the ownership should have been laid in McMurrey. Assuming that McMurrey was a special owner (Bonner v. State, 58 Tex. Cr. R. 195, 125 S. W. 22), that relation would continue only while he had actual care, control, and management of the animal. Bennett v. State, 32 Texas Cr. R. 217, 22 S. W. 684.

The evidence is conclusive that appellant did not take the animal from the possession of McMurrey, and indicates the probability that the animal escaped or was taken from McMurrey by Mitchell. In either event, the special owner had lost control, and the averment that the ownership was in Perry was proper. Deggs v. State, 7 Tex. App. 360; Moore v. State, 8 Tex. App. 498.

If the hog that appellant got was the one placed by Perry with McMurrey, it was not at the time it was taken under the control of McMurrey, and the principles of law stated in Littleton v. State, 20 Tex. App. 171, touching the possession of animals upon the range while still in the care and control of a special owner, are' not applicable. See Branch’s Ann. Texas Penal Code, § 2447.

The sufficiency of the proof of identity of the animal in appellant’s possession with the lost hog is. challenged, and, unless upon another trial the evidence is more cogent upon this issue, there should be no conviction. Dowdell v. State, 85 Tex. Cr. R. 473, 213 S. W. 649; Rosaloz v. State, 84 Tex. Cr. R. 134, 206 S. W. 95; Solomon v. State, 83 Tex. Cr. R. 320, 203 S. W. 50; Strickland v. State, 81 Tex. Cr. R. 643, 197 S. W. 1104; Kellum v. State, 82 Tex. Cr. R. 635, 200 S. W. 843.

The appellant requested the court to instruct the jury, in substance, that unless the hog which was taken by the appellant belonged to Perry, an acquittal must result, although they might believe that Perry had lost a hog of the same description. The refusal of a similar request resulted in a reversal in the case of Doss v. State, 28 Ter. App. 510, 13 S. W. 790, the court remarking:

“It devolved upon the prosecution to establish such identity beyond a reasonable doubt, and, considering the uncertainty of the evidence upon this .very material point, we think the court should have given said special instruction.”

The necessity for such an instruction in the instant case is emphasized by the undisputed fact, proved by the state, that at the time the appellant took possession of the hog he claimed to own it. In other words, it was his defensive theory that, granting all that the state proved was true, that is, that Perry’s hog was missing, and that the one gotten by the appellant bore a marked similarity, they were not identical, and the charge requested would have directed the attention of the jury in the affirmative manner to this material element of the defense.

Prom what we have said, it follows that, in our opinion, the judgment should be reversed, and the cause remanded, which is accordingly ordered. 
      <&wkey;>Eor other eases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes
     