
    The State v. William N. Hall.
    An indictment for illegally marking and branding cattle, &c., founded on art. 707 of the Penal Code, mast charge that the act was done “ without the consent of the owner,” and “ with intent to defraud.”
    The intention to defraud is the gist of the offence.
    A ppeal from Limestone. Tried below before the Hon. James C. Walker.
    The appellee was indicted at the Fall Term, 1860, of the District Court of Limestone county, for the offence of marking, with his own mark, “one calf, said calf being neat cattle within the meaning of the statute, not the property of him, the said Wm. N. Hall, but of the property of John R. Henry, of said county,” &c., “ contrary to the form cf the statute,” &c.
    The defendant excepted to the indictment—
    “1. Because it is not alleged that the act was done to defraud.
    “ 2. Because it is not alleged in the indictment, that the marking and branding was done without the consent of the owner.
    
      “3. That no value is alleged to the animal said, to have been branded.”
    The cause came to trial at the Spring Term, 1863, when the court sustained the exceptions, and entered judgment that the defendant go hence without day, from which the State appealed.
    
      Attorney General. for the appellant.
    
      Charles Stewart, for the appellee.
    Cited Penal Code, art. 767; Code of Crim. Pro., art. 399; Bush v. The Republic, 1 Tex. R., 455.
   Moore, J.

This is an indictment for unlawfully marking and branding cattle, and is founded upon art. 767 of the Penal Code. To constitute the offence attempted to be charged by the indictment, the act must be done “ without the consent of the owner,” and “ with intent to defraud.” For aught that appears from this indictment, the defendant may have been authorized by the owner of the calf to brand it. That he was not, is a material allegation in charging the offence, and should, therefore, have been stated.

The intention to defraud is the gist of the offence, and should also have been charged. (See Code Crim., Proc. art. 399.) The judgment is affirmed.

Judgment affirmed.  