
    D. H. Thurman v. The State.
    1. On a tiial for theft of a hog, it was proved for the State that a hog killed and salted down by the defendant was in the maik of another person alleged in the indictment to be the owner; but this alleged owner would not testify that the hog was his property, but stated that he had found it unmarked and running with his hogs, and had'put his mark on it, behoving it to he his, or that he had as good a right to it as any one else. Tor the defense a son of(the accused testified that the hog belonged'to him, the witness; that it had gone off unmarked whe.n about five months old, and in about three months afterwards it came up along with the sow, its mother, and witness could see that it had been marked, though on account of its having grown wild, could not tell whose mark had been put on it; hut witness knew it well and positively by the flesh marks. There was no seoresy in the conduct of the accused respecting the animal. Meld, that the evidence was not sufficient to warrant a conviction, and it was error to refuse a new trial. (Herber v. State, 7 .Texas, 69, cited )
    Appeal from Tarrant. Tried below before tbe Hon. A. B. Norton.
    Tbe evidence is believed to be fully and accurately epitomized in tbe bead note, and it is not deemed necessary to recapitulate tbe testimony of the half dozen witnesses examined. The jury ■assessed a fine of fifteen dollars and an hour’s imprisonment in tbe county jail, against tbe accused. He moved for a new trial, and on its refusal gave notice of appeal.
    
      H. G. Hendricks and M. Ferris, for the appellant.
    No brief for the State.
   Walker, J.

Under the ruling of this court in Herber v. Tbe State, 7 Texas Reports, page 69, the evidence in this case is clearly insufficient to make out a case of larceny.

The court erred in refusing a new trial. No conviction in a criminal case can be sustained when tbe evidence does net bring tbe offense within the legal definition of that charged in the indictment, or some lesser offense which from its nature merges in the greater one charged ; and in such case it may be said that the lesser offense is charged in the indictment, as the greater carries with it the ingredients of the lesser. The judgment of 'the district court is reversed and the cause dismissed.

Reversed and dismissed.  