
    McCLAIN v. STATE.
    (No. 5932.)
    (Court of Criminal Appeals of Texas.
    March 23, 1921.)
    1. Larceny <&wkey;68(I)— Peremptory instruction properly refused In a prosecution for cattle theft.
    In a prosecution for theft of one head of cattle, held that the court did not err in refusing a requested peremptory instruction of acquittal, based on insufficiency of testimony.
    2. Criminal law <&wkey;459 — Ranch foreman could testify whether tracks were those of, calf or horse.
    Testimony of foreman of ranch to the effect that he saw calf tracks and two horse tracks leading from one pasture to another was properly admitted, as he was competent to give an opinion as to whether certain tracks were calf and horse tracks.
    3. Larceny &wkey;>50 — Evidence as to tracks held admissible in prosecution for cattle theft.
    In a prosecution for cattle theft, court properly permitted state to show that calf tracks and two horse tracks led from the pasture of prosecuting witness to that of defend.ant, being a circumstance tending to show human agency in the moving of the cattle.
    4. Criminal law <&wkey;465 — Witness could not testify as to similarity of horse tracks without showing a peculiarity.
    In a prosecution for cattle theft, court erred in permitting witness to testify that certain horse tracks which he saw at one place were similar to those seen by himself at another place, over the objection that no peculiarity in such tracks was shown, and nothing stated by which same could be identified.
    5. Criminal law &wkey;>338(4, 5) — Error to show theft of other cattlei, with which theft defendant is not connected.
    In a prosecution for cattle theft, it was error to permit proof of theft of other cattle from prosecuting witness, where such cattle were not found in the possession of the accused, or bore any brands claimed by him, or were found in any pastures controlled by him, where proof of the guilty connection of accused with the taking rested almost, if not entirely, on the fact of 'possession by him of cattle recently stolen.
    6. Criminal law <&wkey;673(5), 783(1) — Instruction as to consideration to be given evidence as to other thefts.
    In a prosecution for theft of one head of cattle; if evidence is admitted that other stolen cattle were found in possession of the accused, aside from that alleged in the indictment, the court must [not only] limit the jury’s consideration of such evidence to one of the well-settled exceptions to the rule concerning proof of commission of other crimes, but should also instruct the jury that they can consider same for no purpose, unless they believe beyond a reasonable doubt that such property was stolen within the definition of that term.
    7. Criminal law &wkey;>737(2) — Venue of alleged theft held properly submitted to jury.
    In a prosecution for cattle theft, where accused lived in Kent county, held that the court was justified in the submission of the issue of theft in said county!
    8. Larceny <&wkey;40(IO, 11) — No variance between allegation and proof of ownership and possession of stolen cattle.
    There was no variance between allegation and proof as to ownership and possession in a prosecution for cattle theft from W., where G., who was W.’s foreman, testified he had only charge of the ranch under W.’s instructions, and could neither sell nor dispose of anything or move it from place to place, and that W. gave matters on the ranch his personal supervision most of the time, and W. testified that he had the actual care, control, and management of the cattle stolen.
    Appeal from District Court, Kent County; W. R. Chapman, Judge.
    Sam McClain was convicted of theft of one head of cattle, and appeals.
    Reversed and remanded.
    J. E. Robinson, of Jayton, and Stinson, Chambers & Brooks, of Abilene, for appellant.
    Alvin M. Owsley, Asst. Atty. Gen., for the State.
   LATTIMORE, J.

Appellant was convicted in the district court of Kent county of the theft of one head of cattle from W. A. Newman, and his punishment fixed at two years in the penitentiary.

Appellant introduced no evidence. That of the state showed that in the early part of the year 19ÜJ) appellant was living in Kent county on a place belonging to his sister, Mrs. Pursley, who seems to have owned rather extensive ranch properties. Joining her ranch on the north was that of Mr. Newman, who had for his foreman one Sam Graves. Newman had a large number of calves and other cattle, and in February, upon information received, Graves began to make search, and found in the pastures of Mrs. Pursley some S3 head of the Newman cattle, being 31 yearlings and a cow and calf. Some of these had their marks and brands freshly changed in various ways. A number of them were found in what was called a small pasture immediately joining the premises . occupied by appellant and- his family. Others were found in other pastures of Mrs. Pursley. A day or two after all or part of these cattle were located by Mr. Graves, accompanied by two inspectors of the Cattle Baisers’ Association, he met appellant a mile or two from his house, and they engaged him in conversation. The material parts of said conversation were that he stated to them that he controlled a certain pasture that was indicated, and stated1 that he owned a number of cattle, and that his brand was US. These witnesses agree that they found in the pasture, the control of which appellant stated was in him, 13 of Mr. Newman’s yearlings whose brands had been altered by burning over them the brand US. In this pasture was also found two other of Mr. Newman’s animals branded differently. In all said parties found, as stated, 33 head of Mr. Newman’s cattle, which they took into their possession and drove away. The cow and calf among this number were branded with a double E brand over their old brands. It was in testimony that a man named Murdock claimed the double E brand, but that he never claimed this particular cow and calf. Mr. Echols testi-tified that 9 of the cattle found by said parties in Mrs. Pursley’s pasture were calves sold by him to Mr. Newman, and that they had been recently branded BE. Mr. Overfelt testified that most of Mrs. Pursley’s pastures were in Kent county, and that the place where appellant lived was in Kent county, which disposes of one of the contentions made by appellant to the effect that the trial court erred in submitting to the jury the issue of theft in Kent county. This witness also testified that in the latter part of 1918 and early part of 1919 appellant and another party would often go out looking for cattle and not return until in the night, and that in the early part of 1919 he observed the presence of animals in Mrs. Pursley’s pasture freshly branded US. The indictment in this case was returned in March, 1919, and it was shown by the sheriff that he was unable to locate the appellant in Texas until October of that year, when appellant sent him word to come out and get him, which he did at the place of appellant’s residence. These are substantially the facts, except such as may be discussed in connection with certain bills of exception.

Appellant’s first bill of exceptions is to the action of the trial court in refusing a requested peremptory instruction of acquittal based on the insufficiency of the testimony. We think no error appears in this bill,

Appellant’s bill of exceptions No. 3 was to the overruling of his objection to the testimony of the witness Graves to the effect that he saw calf tracks and two horse tracks leading from the pasture of Mr. Newman into the Pursley pastures. The stated objection was that it was a conclusion of the witness, that the tracks were not identified, and that it was immaterial. We do not think the question as to whether certain tracks were calf and horse tracks called for an opinion such as might not be given by the foreman of a ranch. The facts are not sufficiently stated in the bill to show how the question would be immaterial. Evidence that the tracks crossed from one pasture to the other, whore the fence had been let down, and that the calf tracks were accompanied by two horse tracks, would be circumstances tending to show human agency in the moving of the cattle, and would to that extent be material as bearing upon the issue of theft of same.

Appellant’s bill of exceptions No. 4 sets out that the witness Graves was permitted to testify that certain horse tracks, which he saw at one place, were similar to those seen by himself at another place, over the objection that no peculiarity in such tracks was shown, and nothing stated by which same could be identified, etc. The court should have sustained this objection. In Parker v. State, 46 Tex. Cr. R. 463, SO S. W. 1008, 10S Am. St. Rep. 1021, 3 Ann. Cas. 893, and in the more recent case of Mueller v. State, 85 Tex. Cr. R. 346, 215 S. W. 93, we had occasion to discuss the rules regarding-tracks, and it seems to be well settled that in. order to enable a witness to testify to the similarity of tracks something more must appear than a casual observation or comparison.

By several bills of exception it was shown that the trial court admitted evidence of the finding in the Pursley pastures of other cattle than those branded in the brand which appellant slated to Graves and the inspectors to be his. In other words, the state proved that about the time the missing cattle of Newman were found, appellant told Graves and the inspectors that a certa'u pasture was under his control, that he had some cattle, that his brand was US. It was also testified that in other pastures besides the one so indicated said parties -found a number of Mr. Newman’s cattle whose brands had been changed to other brands than that given them by appellant as his. These other pastures were not shown to be under appellant’s control, and there is nothing to indicate that he claimed to own any cattle of brands other than of US. The finding in the possession of the accused, or proof of the loss of cattle not found under appellant’s control, or not bearing the brand claimed by him, would seem to us inadmissible While under certain well-known rules contemporaneous thefts of other property may be proven, and the finding in the'possession of the accused of other property taken at or about the time of that charged in the given case may also be shown, still where proof of the guilty connection of the accused with the taking rests almost, If not entirely, on the fact of possession , by him of property recently stolen, we know of no authority in which it is held that proof may be made of the theft of other property not found in his possession, and of the taking of which by the accused there is no other evidence. There is nothing in the record before us beyond general suspicion to connect appellant with the cow and calf branded EE found in Mrs. Pursley’s pasture, nor with the 9 Echols’ yearlings found there branded BE.

In this connection we also call attention to the fact that but one animal is herein alleged to have been stolen, and in case evidence be admitted that other stolen property was found in possession of the accused aside from that alleged- in the indictment, the court would be under the necessity, not only of limiting the jury’s consideration of such evidence to one of the well-settled exceptions so often discussed, but should also instruct the jury that they can consider same for no purpose unless they believe beyond a reasonable doubt that such property was stolen within the definition of that term.

We think the evidence sufficiently shows that the pastures of Mrs. Pursley and the place where appellant lived were in Kent county, and that the court was justified in the submission of the issue of theft in said county.

The record before us. seems to sustain the allegation of ownership and possession in W. A. Newman. Mr. Graves, who was Mr. Newman’s foreman, testified that he had only charge of the ranch under Mr. Newman’s instructions, and' could neither sell nor dispose of anything or move it from place to place, and that Mr. Newman was out there and gave matters on the ranch his personal supervision most of the time. Mr. Newman testified as a witness that he had the actual care, control, and management of the animal whose theft was charged. We think there was no variance in the allegation and proof. Hartman v. State, 85 Tex. Cr. R. 582, 213 S. W. 936.

For the errors above mentioned, the judgment of the trial court “will- be reversed, and the cause remanded. 
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