
    TURNER v. STATE.
    (Court of Criminal Appeals of Texas.
    Oct. 22, 1913.)
    1. Animals (§ 10)—Larceny (§ 45)—Evi-dence— Cattle Brand—Necessity of Recording.
    On a trial for cattle theft, evidence as to an unrecorded cattle brand was admissible on the question of identity, though prior to Acts 33d Leg. c. 69, amending Rev. Civ. St. 1911, art. 7160, such evidence was not admissible ,to prove ownership.
    [Ed. Note.—For other cases, see Animals, Cent. Dig. §§ 8-12; Dee. Dig. § 10 ; Larceny, Cent. Dig. §§ 135, 136; Dec. Dig. § 45.]
    2. Criminal Law (§ 673)—Admission of Evidence for Particular Purpose—Instructions.
    On a trial for cattle theft, where evidence as to an unrecorded cattle brand was admissible to establish identity, but not to prove ownership, but the court gave no instruction restricting the jury’s consideration thereof, it was error to refuse an instruction that such evidence should not be considered on the question of ownership.
    [Ed. Note.—For other cases, see Criminal Law, Cent. Dig. §§ 1597, 1872-1876; Dec. Dig. § 673.]
    3. Animals (§ 10) — Evidence — Cattle Brands—Necessity of Recording.
    Under Rev. Civ. St. 1911, art. 7160, as amended by Acts 33d Leg. e. 69, providing that no brand on animals except such as are recorded shall be recognized in law as evidence of the ownership of the animals upon which it is used, but that this shall not apply in criminal cases, in a criminal ease evidence as to unrecorded brands is admissible to prove ownership as well as identity.
    [Ed. Note.—For other cases, see Animals, Cent. Dig. §§ 8-12; Dec. Dig. § 10.]
    4. Larceny (§ 77*)—Instructions—Posses-sion of Recently Stolen Property.
    On a trial for cattle theft, where the testimony showed that soon after the theft the cattle were in accused’s possession and sold by him, that he and the purchaser were indicted, and that the purchaser called on him for an explanation of his possession, this being the first time and first occasion he had been so called upon to explain, and that he then explained that he had not stolen the cattle, but had a bill of sale and a check showing payment for them, a charge on the possession of recently stolen property was properly given, since to justify such charge it is not necessary that the explanation should go minutely into the details of accused’s alleged purchase of the stolen property.
    [Ed. Note. — For other cases, see Larceny, Cent. Dig. §§ 199, 202-204; Dec. Dig. § 77.]
    5. Witnesses (§ 337) — Impeachment op Accused in Criminad Case — Previous Convictions.
    Where accused testifies he is subject to examination as any other witness, and can be compelled to testify to previous indictments or convictions for felony, if not too remote.
    TEd. Note. — For other cases, see Witnesses, Cent. Dig. §§ 1113, 1129-1132, 1140-1142, 1146-1148; Dec. Dig. § 337.]
    6. Witnesses (§ 337*) — Impeachment oe Accused in Cbiminal Case — Previous Convictions.
    On a trial for cattle theft, where it appeared that accused explained his possession of the stolen cattle by stating that he purchased them and had a bill of sale and a check showing payment, and the bill of sale was in evidence, accused’s conviction for a felony and imprisonment for 18 months 18 years prior to the trial was too remote to justify proof thereof on his cross-examination.
    [Ed. Note. — For other cases, see Witnesses, Cent. Dig. §§ 1113, 1129-1132, 1140-1142, 1146-1148; Dec. Dig. § 337.]
    7. Larceny (§ 47) — Evidence—Admissibility.
    On a trial for theft of cattle for which accused claimed to have a bill of sale, evidence that the general reputation for honesty of the notary before whom the bill of sale purported to have been acknowledged was a “little bad” should have been excluded.
    [Ed. Note. — For other cases, see Larceny, Cent. Dig. § 139; Dee. Dig. § 47.]
    Appeal from District Court, ¡Lubbock County; W. R. Spencer, Judge.
    J. B. Turner was convicted of theft, and he appeals.
    Reversed and rerqanded.
    Dalton & Russell, of Plainview, and W. F. Ramsey, of Austin, for appellant C. E. Lane, Asst. Atty. Gen., for the State.
    
      
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   PRENDERGAST, P. J.

The appellant was indicted in some nine counts in the indictment The court submitted four of these to the jury for a finding — the fourth, which charged theft from W. S. Hall, the fifth, which charged theft from an unknown owner, the seventh, which charged the unlawful and fraudulent receiving of stolen property from some person to the grand jurors unknown, such unknown person having acquired the property under such terms as to be guilty of theft, and the eighth count, with receiving the stolen property from some one who had fraudulently, etc., taken the same from said Hall. There was a general verdict. The court in the judgment applied the verdict, in effect, to the fourth count. The contention of the state was that the alleged stolen cattle was the property of the Van Nattas, but that they were in the possession, control, etc., of said Hall, who was their manager.

By bills appellant complains that the court permitted the said Van Nattas and Hall to testify that the said Van Nattas ran as their brand the letter “V” on the left jaw and thigh, claiming that, as their brand was not recorded, such evidence was inadmissible to prove ownership. Under the previous uniform holding of this and the Supreme Court, when it had criminal jurisdiction, such testimony was not admissible to prove ownership, but it was admissible for the purpose of showing identity. The court correctly held the testimony admissible to establish identity of the alleged stolen animals, but he nowhere in his charge to the jury restricted the jury to the consideration of such testimony for the purpose of identity alone. The appellant requested, and the court refused to give, this charge; “You are instructed that on the question of ownership you will not consider the evidence of the brand of Van Natta brothers, as it was not shown to have been recorded.” This charge should have been given, and for the refusal of the court to give it this case must be reversed. Childers v. State, 37 Tex. Cr. R. 392, 35 S. W. 654. It is needless to cite the many other cases to the same effect. However, we call attention to the fact that since the trial of this cause, by the act of March 31, 1913, p. 129, which went into effect on July 1, 1913, the Legislature of this state amended article 7160 of the Revised Civil Statutes, whereby it is provided in that article that no brand, except such as is recorded, shall be recognized in law as any evidence of ownership of cattle, etc., by providing “that this shall not apply in criminal cases.” So that hereafter the decisions of this court limiting the evidence of unrecorded brands to identity of a stolen animal shall not apply in criminal eases, but such evidence will be admissible for the purpose of establishing ownership as well. Dugat v. State, 148 S. W. 789.

In view of another trial, we will pass upon the other questions raised by appellant. The court gave a charge on the possession of recently stolen property, which has been expressly approved by this court (Wheeler v. State, 34 Tex. Cr. R. 350, 30 S. W. 913, and. many other cases since then). It seems appellant does not contend that this is not a proper charge, if called for by the evidence, but his contention is that the evidence called for no charge on the subject. It is unnecessary for us to detail the evidence. The testimony does show that soon after the alleged theft of this property these cattle were shown to have been in appellant’s possession and sold by him; that he was at once indicted, and the party to whom he sold them was also indicted for receiving from him said alleged stolen property, and that very soon after, this purchaser called on Mm for an explanation of his possession, which was the first time and first occasion he had been so called upon to explain; that he then explained, in effect, that he had not stolen the cattle; that he had a bill of sale and a check showing payment for them. We are clear that this was such an explanation of his possession of tMs alleged stolen property as called" for the charge given by the court. It was unnecessary, in order to call for this charge, that he should go minutely into the question of from whom he bought the cattle, how much he paid for them, when, and all the other details. See the cases collated in White’s P. C. §§ 1518, 1510.

The appellant himself testified. In cross-examination by the defendant, over his objections, he was required to testify before the jury that about IS years before this trial he had been convicted for a felony and served an 18-month term in the penitentiary in the Indian Territory. This was objected to because it was too remote. Under our law, when an accused himself testifies, he is subject to examination and cross-examination as any other witness, and can be compelled to testify to any previous felony convictions or indictments for felony, provided they are not too remote or too long since. Wright v. State, 63 Tex. Cr. R. 429, 140 S. W. 1105. This court has never fixed any definite time —the shortest — where such testimony could be introduced. It depends upon the circumstances of the ease. Oates v. State, 149 S. W. 1196; Vielr v. State, 159 S. W. 56. In our opinion the conviction of appellant in the Indian Territory, as shown above, and his having served a term in the penitentiary therein, under the circumstances of this case, as developed by this trial, is too remote. Upon another trial, if objection is made, the testimony of that conviction should be excluded by the court.

Upon another trial the testimony of Lewis, to the effect that the general reputation of B. C. Campbell, the notary before whom the purported bill of sale purports to have been acknowledged, for honesty hei thought was a little bad, should not be admitted upon proper objections thereto.

There is nothing else raised necessary to be discussed. For the error above pointed out, the judgment is reversed and the cause remanded.  