
    No. 5384.
    Gord Thompson v. The State.
    Theft—Ownership—Pact Case.—See the opinion in extenso for evidence held insufficient to support a conviction for the theft of a cow, because insufficient to support the allegation of ownership.
    Appeal from the District Court of Callahan. Tried below before the Hon. J. C. Randolph.
    This conviction was for the theft of a cow, alleged to be the property of John Merchant. The penalty assessed against the appellant was a term of two years in the penitentiary.
    The evidence adduced on the trial is summarized in the opinion of the court.
    
      J. A. Holland and J. E. Thompson, for the appellant.
    
      W. L. Davidson, Assistant Attorney General, for the State.
   Hurt, Judge.

Appellant was convicted below of the theft of a certain cow, the property of John Merchant. This cow was supposed to be one of a herd purchased by Merchant of R. W. Ferrell. The latter sold no animal to Merchant branded on the left hip with P, but the cattle sold to Merchant were branded P on the side. Ferrell had cattle branded P on the hip, but none of them were sold to Merchant. Appellant, prior to and at the time of the taking, had authority from Ferrell to handle his cattle in the P brand.

Opinion delivered May 7, 1887.

About a year after Merchant bought the cattle from Ferrell, some one informed Merchant that appellant had driven a cow in the P brand off the range in Callahan county, near where appellant was living. Upon this information Merchant went to see appellant about the animal. Appellant told Merchant that he purchased an animal of that description from Ferrell. This, how ever, was denied by Ferrell. It appears, though, that appellant sold the cow which he was driving to one Robinson. The latter was placed on the stand and testified that the cow bought by him of appellant was branded P on the left hip, and not on the side.

The record renders it certain that the cow purchased of appellant by Robinson is the animal supposed to have stolen by defendant. But one cow enters into the determination of this case; and the question is, was this cow the property of John Merchant? Clearly not, and hence the conviction can not stand.

Viewing the case from another stand point, no witness-ever saw appellant in the possession of a cow branded P, save the one bought by Robinson. For is there the slightest evidence tending to show that Merchant lost a cow branded P, except from report; and, when traced, this report is found to take its source in the cow sold to Robinson.

We are of opinion that the evidence fails to support the conviction, and for this reason the judgment is reversed and the cause remanded.

Reversed and remanded.  