
    Clemens Matura v. The State.
    No. 3165.
    Decided October 18, 1905.
    Theft of Cattle—Insufficiency of Evidence.
    See opinion for evidence held insufficient to support a conviction for the theft of a cow, no fraudulent intent on the part of defendant when he took the animal having been shown.
    Appeal from the District Court of Fayette. Tried below before Hon. L. W. Moore.
    Appeal from a conviction of theft of cattle; penalty, two years imprisonment in the penitentiary.
    The opinion states the case.
    
      Robt. Moss and Brown & Lane, for appellant.
    Boyd v. State, 28 Texas Crim. App., 524; 13 S. W. Rep., 864; Evans v. State, 15 Texas Crim App., 31; Ainsworth v. State, 11 id., 339; Smith v. State, 42 Texas, 444; Johnson v. State, 41 id., 608; Billard v. State, 30 id., 367; Burton v. State, 1 S. W. Rep., 450.
    
      
      Howard Martin, Assistant Attorney-General, for the State.
   BROOKS, Judge.

Conviction of cattle theft, two years in the penitentiary being fixed as the penalty. We do not deem it necessary to review but one question to wit: the sufficiency of the evidence. It appears from the testimony that appellant’s mother authorized her son-in-law to sell a cow to prosecuting witness, which he did, and received the pay therefor. Subsequently appellant (who at the time was absent from home) returned and demanded that the cow his mother had authorized to be sold, be delivered to him by the purchaser. He informed the purchaser he was coming after the cow, and thereafter, in the day-time, went to purchaser’s house and demanded possession of the cow—and it was turned over to him; at least he .got possession of the cow, claiming the same as his property. The State’s evidence very sharply controverts this idea of ownership on his part, and clearly shows that the cow belonged to his mother. Be this as it may, the evidence does not show a fraudulent taking on the part of appellant. The question of title to the property can very aptly be tried in the justice court. There being no evidence showing a fraudulent intent on the part of appellant when he took the animal, the judgment is reversed and the cause remanded.

Reversed and remanded.  