
    GARCIA v. STATE.
    (No. 11005.)
    Court of Criminal Appeals of Texas.
    Oct. 5, 1927.
    Rehearing Denied Nov. 30, 1927.
    I.Criminal law <©=>371 (2) — Proof relating to hogs previously stolen held admissible to show intent in prosecution for subsequent selling of one of hogs which had escaped.
    Where accused confessed that he and another impounded eleven hogs running on, the range, bearing mark of owner named in indictment, and that, after ten of them were sold, one of hogs which had escaped returned and was also sold, held that evidence relating .to the ten hogs first sold was admissible to show accused’s intent, in prosecution based on his connection with theft of the one hog subsequently sold.
    On Motion for Rehearing.
    2. Criminal law <3=814(17) — Instruction on circumstantial evidence need only be given where such evidence is solely relied on for conviction.
    Trial court is not required to instruct the jury on the law of circumstantial evidence except in cases in-which the state relies solely on that character of evidence to secure conviction.
    3. Criminal law <3=814(17) — Prosecution for theft, proved by direct evidence, does not depend solely on circumstantial evidence within rule requiring instruction thereon.
    Where theft of personal property with intent to deprive owner of its value is proved by direct testimony, prosecution is not one in which state relies solely on circumstantial evidence within rule requiring instruction on circumstantial evidence.
    4. Criminal law <©=>814(17)— On direct evidence of theft, circumstantial evidence of ownership did. not require charge on circumstantial evidence.
    Where defendant’s unlawfully taking and selling of another’s hogs was proved by direct testimony, consisting of his confession and his testimony at trial, and by corroborating circumstances, court’s failure to charge on the law of circumstantial evidence was not error merely because the one hog, for taking of which the prosecution was based, was identified by circumstances as belonging to the owner named in the indictment.
    5. Larceny <3=73 — Instruction to acquit if ownership was not proved as charged in indictment beyond reasonable doubt would have been proper where ownership depended on circumstances.
    In prosecution for theft of hogs, in which ownership of the one hog on which prosecution was based was proved by circumstantial evidence, it would have been proper for court to have instructed an acquittal unless evidence showed beyond reasonable doubt that owner named in the indictment was the owner of the stolen animal.
    Appeal from District Court, Frio County; W. O. Murray, Jr., Judge.
    Elias Garcia was convicted for theft of a hog, and he appeals.
    Affirmed.
    Grover C. Morris, of San Antonio, for appellant.
    Sam D. Stinson, State’s Atty., and Robt. M. Lyles, Asst. State’s Atty., both of Austin, for the State.
   HAWKINS, J.

Conviction is for theft of a hog; punishment being two years in the penitentiary.

Braun, the alleged owner of the animal, had a number of hogs running on the range. He missed ten or twelve head. He secured the aid of Patterson, an officer, and they discovered where quite a bunch of hogs had been driven from the accustomed range to the Oude place, which at the time was vacant. Prom signs there, it appeared the hogs had been penned and loaded in a wagon and truck; the tracks of the vehicles indicating the truck was loaded last. Braun’s hogs were marked with a “swallow fork” in each ear. Patterson testified that they found in San Antonio, at the stockyards, 10 hogs bearing Braun’s mark. Some days later Braun found at the stockyards another hog bearing his mark. The state put in evidence appellant’s written confession, in which he admitted that he and one Harrison drove to and penned on the Oude place eleven head of hogs which were in Braun’s mark; that while Harrison watched the hogs appellant went and got his wagon in which ten head were loaded,, one having escaped while appellant was-gone after the wagon; that the ten head were taken to San Antonio by appellant, who sold them to the stockyards and gave one-half the money to Harrison; that a few days later the hog which had escaped came back to the' Oude place, and that he and Harrison penned it and loaded it in a truck belonging to appellant, who also took it to San Antonio, sold it, and divided the money with Harrison.

The prosecution which resulted in this conviction seems to have been predicated on appellant’s connection with the one hog last referred to. He interposed objection to proof relating to the ten hogs. The evidence was properly admitted. According to appellant’s confession, the last hog sold by him was taken into his and Harrison’s possession at the time the other ten hogs were taken. If it escaped and went back into the constructive possession of the owner and was taken again by appellant, the evidence of his former dealing with it was admissible. Appellant’s confession showed a fraudulent taking. On the trial he claimed not to have had a fraudulent intent when he took possession of the hogs, but claimed he only intended to impound them. This issue was submitted to the jury. On the issue of intent, appellant’s connection with all the hogs on both occasions was properly .shown. Lusport v. State, 80 Tex. Cr. R. 314, 190 S. W. 151; Simpson v. State, 81 Tex. Cr. R. 389, 196 S. W. 835. For other collated authorities, see note 56 under article 703, Vernon’s O. O. P. vol. 2, and section 2347, Branch’s Ann. P. C.

We are of opinion the court committed no error in omitting to charge on circumstantial evidence. ’ The gist of the ojíense of theft is the “fraudulent taking.” This was shown by appellant’s confession. The identity of the animal stolen as one which belonged to Braun was sufficiently shown by proof of the marking and surrounding facts. Because that may have become an issue, it would not in our opinion, under the facts of this case, demand a charge on circumstantial evidence. Buntain v. State, 15 Tex. App. 520; Glover v. State (Tex. Cr. App.) 46 S. W. 824; Davis v. State (Tex. Cr. App.) 295 S. W. 608.

Finding no error in the record which demands a reversal, the judgment is affirmed.

On Motion for Rehearing.

MORROW, P. J.

In his motion for rehearing, appellant insists that the evidence of the ownership of the hog in question rendered it incumbent upon the cour.t to charge upon the law of circumstantial evidence.

We understand that it is the settled law of this state that the trial court is not required to instruct the jury on the law of circumstantial evidence except in cases in which the state relies solely upon that character of evidence to secure a conviction. See Hunnicutt v. State, 18 Tex. App. 498, 51 Am. Rep. 330; Russell v. State, 38 Tex. Cr. R. 596, 44 S. W. 159, and other cases collated in Branch’s Ann. Tex. P. C. § 1874. In a case of theft of personal property, where the unlawful taking with the intent to appropriate it to the use of .the accused and to deprive the owner of its value is proved by direct testimony, the prosecution is not one upon which the state relies solely upon circumstantial evidence. See Rodgers v. State, 36 Tex. Crim. Rep. 563, and other case collated in Branch’s Ann. Tex. P. C. p. 1342, § 2480, subd. 3.

In the present instance, that the appellant took possession of eleven head of hogs, that one of them escaped and was afterwards retaken by the appellant, that he sold first the ten head and later the one head, was proved by direct testimony, namely, the confession of the appellant and his testimony on the trial, and by-corroborating circumstances. The sole defensive theory interposed by the appellant was that he took the property with no intent to deprive the owner thereof, but to protect his own premises from depredation by the hogs. That issue was submitted to the jury and determined against him. On this hearing it therefore definitely appears that the appellant took the property, that he did it unlawfully and without the consent of the owner, and with intent to appropriate it to his own use and deprive the owner of its value. This all coming from direct testimony, the case, in our opinion, was not one in which the state relied for a conviction upon circumstantial evidence alone. Conceding that the one hog, for the theft of which this prosecution is based, was identified as belonging to Braun (the owner named in the indictment), by circumstances, the application of the principles of circumstantial evidence to the whole case would still not have been appropriate, for the reasons stated, that the unlawful taking by the appellant was proved by direct evidence and only the ownership of the stolen proprty was proved by circumstances. It follows that only a part of the state’s case depended upon circumstantial evidence. In almost every criminal case a part, at least, of the state’s case is circumstantial. This court has uniformly declared the rule to be as stated above.

The several precedents to which we have been referred, namely, Veasly v. State (Tex. Cr. App.) 85 S. W. 274, Patrick v. State, 106 Tex. Cr. R. 205, 291 S. W. 901, Goode v. State, 56 Tex. Cr. R. 418, 120 S. W. 199, Felts v. State, 53 Tex. Cr. R. 48, 108 S. W. 654, and Childers v. State, 37 Tex. Cr. R. 392, 35 S. W. 654, have been considered, and are not deemed in conflict with ,the rule of practice stated in the beginning of this opinion, nor of its application to the present facts. '

We will state, however, that it would have been proper for the court to have instructed the jury, in substance, that, unless the evidence showed beyond a reasonable doubt that Braun was the owner of the stolen animal, an acquittal should result. Such a charge, if requested, doubtless would have been given by the -court. At all events, as the record is viewed here, a charge of the nature last mentioned would have fully protected the appellant’s legal rights. See Davis v. State, 68 Tex. Cr. R. 400, 152 S. W. 1094.

The motion for rehearing is overruled. 
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