
    TAYLOR v. STATE.
    (Court of Criminal Appeals of Texas.
    March 15, 1911.
    On Motion for Rehearing, June 21, 1911.)
    1. Larceny (§ 84
      
      ) — Indictment — Sufficiency — Want of Owners’ Consent.
    
      An indictment for theft, charging that the property was taken without the consent of J. “and” L., the owners, was not insufficient for failing to state that the taking was without the consent of either.
    [Ed. Note — For other cases, see Larceny, Cent. Dig. § 61; Dec. Dig. § 34.]
    2. Larceny (§ 40) — Indictment—Variance— •Ownership of Property.
    Persons in charge of cattle on a range, .looking after them for the owner, were properly stated to be the owners thereof in an indictment for theft.
    [Ed. Note. — For other cases, see Larceny, Cent. Dig. § 120; Dec. Dig. § 40.]
    3. Criminal Law (§ 404) — Evidence—Cattle Brand.
    In a trial for cattle theft, it was not error to receive testimony that witness who examined the brand on the cow made k memorandum of the mark and brand on it, nor to receive in evidence the memorandum, where the testimony conformed to the memorandum and accused cross-examined.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 891-893; Dec. Dig. & 404.]
    4. Larceny (§ 45) — Cattle Theft — Evidence —Admissibility.
    In a trial for cattle theft, where it appeared that accused sold the cow to F., it was not error to permit F. to testify that he showed the cow to W., where the testimony was followed by testimony of W. and other witnesses rendering the particular testimony material.
    [Ed. Note. — For other cases, see Larceny, Cent. Dig. §§ 135, 136; Dec. Dig. § 45.]
    5. Criminal Law (§ 404) — Evidence—Identity of Signatures.
    Where one accused of theft, claiming that he bought the property from another, showed a bill of sale purporting to be signed by such other person whose whereabouts were unknown, a road petition bearing the known signature of such other person was property admitted to show that the signature on the bill of sale was not genuine.
    [Ed. Noté. — For other cases, see Criminal Law, Cent. Dig. §§ 891-893; Dec. Dig. § 404; Forgery, Cent. Dig. § 112.]
    6. Criminal Law (§§ 419, 420) — Evidence-Understanding.
    A witness should not be permitted to testify to his understanding from what another told him.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 973-983; Dec. Dig. §§ 419, 420.]
    7. Criminal Law (§§ 419, 420) — Evidence-Hearsay Testimony.
    Testimony as to what another told a witness was properly excluded as being hearsay.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 973-983; Dec. Dig. §§ 419, 420.]
    8. Criminal Law (§ 404) — Evidence—Admissibility — Comparison of Signatures.
    Whe're one accused of theft claimed that he purchased the property from another, under a bill of sale introduced in evidence, and the state disputed the genuineness of the signature on the bill of sale, accused could not show another bill of sale signed by such other person by his wife.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. § 892; Dec. Dig. § 404.]
    9. Criminal Law (§ 1092) — Bills of Exception-Necessity.
    Under Code Cr. Proc. 1895, art. 724, requiring bills of exception to be signed by the trial judge, errors assigned in the brief on exceptions to the testimony not preserved by bills of exceptions cannot be considered.
    [Ed. Note. — For other cases, see Criminal Law, Dec. Dig. § 1092.]
    10. Larceny (§ 8) — Ownership—Possession.
    Theft of a cow is no less the taking from the original owner because a third person has previously taken it and changed the 'brand, where the cow returned to her accustomed range before the theft.
    [Ed. Note. — For other cases, see Larceny, Cent. Dig. § 20; Dec. Dig. § 8.]
    11. Criminal Law (§ 784) — Instructions— Circumstantial Evidence.
    It was not necessary to instruct on circumstantial evidence in a trial for cattle theft, where accused admitted taking the cow from her range and selling her, relying on a claimed purchase from a third person.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. § 1883; Dec. Dig. § 784.]
    12. Larceny (§ 78) — Instructions—Hatter of Defense.
    In a trial for cattle theft, an instruction that, if accused bought the cow from the third person, he should be acquitted no matter what the other evidence showed, or if the jury had reasonable doubt as to whether accused so purchased, was not erroneous as limiting the defense to a purchase from the third person, where the court instructed that if, on the whole case, the jury had reasonable doubt as to accused’s guilt, he should be acquitted.
    [Ed. Note. — For other cases, see Larceny, Cent. Dig. § 182; Dec. Dig. § 78.]
    13. Larceny (§ 55) — Cattle Theft — Evidence-Sufficiency.
    Evidence held to support a conviction of cattle theft.
    [Ed. Note. — For other cases, see Larceny, Dec. Dig. § 55.]
    On Motion for Rehearing.
    14. Criminal Law (§ 1169) — Appeal—Harmless Error — Admission of Testimony.
    Any error in admitting testimony is not ground for reversal, if the same fact was proven By other testimony not objected to.
    [Ed. Note. — For other eases, see Criminal Law, ^ Cent Dig. §§ 3137-3143; Dec. Dig. §
    15.Criminal Law (§ 814) — Submission of Issues.
    An issue not raised by the evidence should not be submitted.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. § 1979; Dec. Dig. § 814.]
    16.Criminal Law (§ 1064) — Objections— Preservation by Motion for New Trial —Necessity.
    An objection that the evidence does not show an essential fact to sustain a conviction should not be considered, where it was not presented in the motion for new trial.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. § 2680; Dec. Dig. § 1064.]
    17.Larceny (§ 60) — Ownership—Evidence —Sufficiency.
    Evidence, in a trial for cattle theft, held to support a finding of special ownership in two persons in charge.
    [Ed. Note. — For other cases, see Larceny, Dec. Dig.-§ 60.]
    Appeal from. District Court, Liberty County; L. B. Hightower, Judge.
    Albert Taylor was convicted of cattle theft, and he appeals.
    Affirmed.
    E. T. Branch and Stevens & Pickett, for appellant
    C.- E. Lane, Asst Atty. Gen., for the State.
    
      
      For other eases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key No. Series & Rep’r Indexes
    
    
      
      For other eases see same topic and section NUMBER in Dec. Dig. & Am.-Dig. Key No. Series & Rep’r Indexes
    
   HARPER, J.

Appellant was indicted charged with theft of cattle, and upon a trial he was convicted and his punishment assessed at two years’ confinement in the penitentiary.

1. The first question presented in appellant’s brief is that the indictment should be quashed; the indictment alleging that the one head of cattle was the property of John Brown and L. Carr. It is insisted the indictment should have alleged that the property was taken without the consent of John Brown, and without the consent of L. Carr, or either of them. We do not think the motion is well taken. When the allegation is that the property was taken without the consent of Brown and without the consent of Carr, no additional allegation as to want of consent is necessary. Williams v. State, 19 Tex. App. 279. The cases cited by appellant are not applicable, in that in those cases it was not alleged that property was taken without the consent of each of the alleged owners. In this indictment the allegation is specific that the property was taken without, the consent of each of them.

2. Appellant complains that the proof does not show that the property was in possession of the alleged owners, and, if so, their control was not such that ownership could be alleged in them. The proof is that the cattle were the property of Sara-son Guedry. The ownership is alleged in John Brown and L. Carr. Harb Whittington testified: “John Brown and L. Carr had charge of Guedry’s cattle.” L. Carr testified: “I have charge of Sarason Guedry’s cattle. There is some one assisting me and in charge, also; it is John Brown.” John Brown testified: “I have charge of Sarason Guedry’s cattle. After I came down there, me and L. Carr had charge of them.” They were cattle on the range, and the owner had these gentlemen in charge of them, looking after them, branding the increase, etc. They testified that neither of them gave their consent to defendant taking the property. This question is fully discussed in Littleton v. State, 20 Tex. App. 171, and in Bailey v. State, 18 Tex. App. 430. In the Littleton Case the cattle were taken from the range, and Hue Haby was in charge of them. The indictment alleged the ownership and possession in Huegele, the real owner. Judge Hurt, in an extensive opinion, reverses the case, because of this, and holds that the ownership and possession should have been alleged in Haby, or the ownership in Huegele and possession in Haby.

3. In appellant’s bill of exception No. 1 he complains that while John Brown, witness for the state, was testifying, he stated that, at the time he and others examined the brand on the cow in question, he made a memorandum of the mark and brand found on the animal, and thereupon handed this memorandum to the district attorney, who offered it in evidence, to which defendant objected, because the same was a private memorandum and made at a time when the defendant had no opportunity to cross-examine the witness. The court, in approving the bill, says the witness had already testified to the mark and brand he found on the cow, and his testimony corresponded with the exhibit. The court did not err in admitting the testimony. The defendant at the time had an opportunity to cross-examine the witness, and he did so vigorously, and if pictures of scenes, etc., are admissible, we can see no reason why the testimony of a witness who testifies that he made an exact copy of the brand on the cow is not admissible. It has been frequently held by this court that hides with the brand on them are admissible in evidence in cases of theft.

4. In bill of exception No. 2 defendant complains, after the testimony had shown that, defendant sold the .animal in question to George Fairchilds, that Fairchilds was permitted to testify that he had shown the cow he purchased from defendant to Harb Whittington. This was followed up by testimony from Whittington, Canter, Carr, and Brown, rendering the testimony very material, in that this was the cow that is alleged to have been stolen and identified by a portion of the witnesses as Guedry’s cow, and which animal Fairchilds testified he purchased from defendant.

5. In his third bill of exception defendant complains of the action of the court in admitting in evidence a road petition signed by C. K. Lampert. Defendant claimed that he had purchased the alleged stolen animal from C. K. Lampert, and introduced in evidence a bill of sale with his name signed to it, as evidence, if the animal was stolen Lampert was the thief. Lampert was shown to have other charges against him, and had gone to parts unknown! Fairchilds testified that he circulated' the road petition, that he knew C. K. Lampert, and that he saw him (Lampert) sign his name to the petition. W. J. Ziess, a bank cashier, qualified as an expert, and testified that the man who signed the bill of sale to defendant did not sign the road petition, that both signatures were not written by the same man. The road petition was admissible.

6. Defendant’s bill of exception No. 4 complains of the action of the court in refusing to permit him to prove by the witness Warren what Lampert had told the witness, and what the witness’ understanding was from what Lampert had told him. The witness’ “understanding” would certainly not be admissible, and what Lampert told him would be hearsay. It is not shown to have had any connection with the animal alleged to have been stolen.

7. In defendant’s fifth bill of exception he complains of the action of the court in refusing to permit him to introduce a bill of sale to James Gasey of some hogs. The bill of sale is shown to have been by Chas. Lampert, per Mrs. G. K. Lampert. The bill of sale is shown not to have been written by Lampert, but by his wife, and is inadmissible for any purpose. The defendant does not claim that it is Lampert’s handwriting, nor that it was signed by him, and it’ could not and would not tend to prove any issue in the case.

8. These are all the bills of exception in the record, reserved in the usual form, and approved by the, judge. But in the brief appellant seeks to assign errors on objections to the testimony not preserved in bills, referring to the statement of facts filed herein. The judge in approving the statement of facts limits his approval as a statement of facts, and we cannot consider bills of exception not bearing the signature of, the trial judge. Defendant probably apprehended this fact by reserving the above bills of exception. The other questions raised in regard to the introduction of evidence we cannot consider, as they are not authenticated by the trial judge. See article 724 of the Code of Criminal Procedure of 1895, and the authorities cited in sections 860 and 861 thereunder in White’s Annotated Code of Criminal Procedure.

9. Defendant contends that if the animal was originally branded in Guedry’s brand and was in charge of Brown and Carr, prior to the time he was seen driving it from its range, that the brand had been changed, and that in changing the brand such person must have reduced it to possession, and the theft would not be from Brown and Carr, but from the person who had altered the brand. This contention is not sound., In the case of Trimble v. State, 33 Tex. Cr. R. 400, 26 S. W. 727, Judge Davidson correctly holds: “The hogs were placed in the pen built by appellant and afterwards escaped. If they entirely escaped from the control of their captors, in law they would be in the possession of the owner again. In such state of case a second taking would be a fresh larceny, and the taker could be punished therefor.” So in this case, if some person did capture the animal, and change the brand, and then turn her loose on her accustomed range, she would again be in her owner’s possession, and, if the defendant then took her and appropriated her to his own use, it would be theft from the owner.

10. Defendant complains that the court erred in not charging on circumstantial evidence. The testimony shows the animal to have been Guedry’s, if the state’s theory was believed. Brown and Carr were in charge of Guedry’s cattle. Canter swears he saw defendant driving her from her accustomed range. Fairchilds swears'he bought the cow from defendant. Defendant admits he took the cow from her accustomed range, and sold her to Fairchilds, basing his defense on an alleged purchase from Langtry. The court did not err in not charging on circumstantial evidence. „

11. The defendant complains of the charge of the court, in that he says that the court limits his defense to a purchase from Langtry. The court charged the jury: “Lou are further charged that, if you find and believe from the evidence that the animal in question (the red heifer about which the witnesses speak and which defendant sold to George Fairchilds) was purchased or obtained by the defendant of one Lampert, then you will acquit defendant no matter what the 'other facts of the case may be, or if upon this point, that is, as to whether the defendant purchased or obtained said animal from one Lampert, you entertain a reasonable doubt, you will solve the doubt in favor of defendant and acquit him and say by your verdict not guilty.” This presents admirably defendant’s defense as made by his testimony; but the court went further and instructed the jury that, if, on "the whole case, they had a reasonable doubt as to defendant’s guilt, they would acquit him. Defendant requested no special instructions. The bills of exception present no error.

The evidence amply supports the verdict and the judgment is affirmed.

On Motion for Rehearing.

On a former day of this term this case was affirmed, and appellant has filed a motion for a rehearing. In the first ground he complains bitterly of the eighth paragraph of the original opinion, in which we did not consider a bill of exception that appellant claims to have reserved in the statement of facts, and citing us to a number of cases holding that bills of exception can be reserved in a statement of facts. This we concede, and was conceded in the original opinion; but bills of exception, whether in a statement of facts or in separate bills, must be approved by the court. In this instance the court limited his approval in the following language: “The foregoing 40 pages having been submitted to me, and after having examined same, I hereby approve same as a true and correct transcript of the evidence adduced on the trial of the above cause, and order same filed with the records in this cause as the statement of facts herein.”

In speaking of reserving bills of exception in a statement of facts, this court held, in Blackwell v. State, 33 Tex. Cr. R. 280, 26 S. W. 397, speaking through our presiding judge: “While bills reserved to the admission of evidence may be so preserved, the refusal of the court to do so would. not be cause for reversal. The defendant may prepare his bills otherwise, and if refused by the court they can be proved up by bystanders under the statute. The defendant is not left without remedy in regard to bills of exception.' - Rev. Statutes, arts. 1358-1367.”

We have no reason to know why the judge so limited his approval as to exclude the idea that he was approving the bills therein contained; but as said in the Blackwell Case, supra, the defendant was not left without remedy, and, • in three other instance's where the objections.and exceptions appear. in the record in this ease, the defendant did pursue his remedy and bring the questions before us in separate hills approved by the judge. In Moss v. State, 39 Tex. Cr. R. 4, 43 S. W. 983, this court held that “bills of exception not approved by the trial judge will not be considered on appeal,” and, while the rules adopted by the Supreme Court authorize bills of exception to be preserved in a statement of facts as well as by a separate bill, yet it has never been held that any character of bill not approved by the trial judge would be considered on appeal, and, if a person elects to preserve his bills of exception in a statement of facts, it must be evident that the trial judge in his approval of the record did so with the knowledge that it was being done, for if the bills are thus brought up, and the approval of the record shows that he did not so intend, and limited his approval as a statement of facts alone, the bills will not be considered by us.

However, if we were to consider the matter complained of as a bill of exception, no such error as would cause a reversal of this case would appear. The objection was to the admissibility of the record of Sarason Guedry’s brand, because the record did not show on what part of the animal it was to be placed. When the witness George Fairchilds was on the stand, the defendant made the following proof by him: “I know the Guedry brand C. I. cross or bar. As to whether that letter T is put in that circle a long T or a dot, well on most of them it is a dot right on the inside of the ‘C.’ I do not know whether it is run or put on with a rod, made the brand with a rod. I suppose you can make it either way, run it or have a brand either I guess. When I bought It, that cow had Guedry’s brand on it. I know Guedry’s brand.” The state had asked this witness no question in regard to the matter. And, while the witness L. Carr was on the stand, the defendant objected to him testifying about the brand, when the court in ruling remarked, “You brought it -out on cross-examination.” The state did not depend on the brand as proof of ownership, but Day Canter testified: “That (the brand) was not the way I base my idea that it was Guedry’s cow. I knew the cow.” So, if the bill should be considered, no such ■error is presented as should cause a reversal of the case.

In Rogers v. State, 26 Tex. App. 404, 9 S. W. 762, it is held that the erroneous admission of evidence is not cause for reversal, if the same fact was proven by other testimony not objected to.

Defendant insists also that in the ninth paragraph the court misunderstood the position of appellant, and that the proposition submitted by appellant was that the theft took place at the time the brand was changed, and, if appellant changed the brand, this was -the original taking, and the fact that he was subsequently seen driving it from its accustomed range is but a circumstance to be considered in determining whether or not he is the person who stole the animal from Brown and Carr, and the court should have charged on circumstantial evidence. Appellant requested no special instruction in regard to this matter, and article 723 of the Code of Criminal Procedure of 1895 provides that in case such error is committed by omission, and it was not calculated to injure appellant, it would not be cause for reversal, and if the taking really took place when the brand was changed, if appellant did the branding, the error, if any, would be harmless. Appellant’s contention that' he got the animal from Lampert was fully presented to the jury, and they found against his contention. But we do not place our opinion on that ground. If one takes the animal of another and brands it and then leaves it on its accustomed range, while he might be guilty of an offense, the owner is deprived of no property. As said by Judge Davidson in Trimble Case, quoted in the original opinion, if the animal escaped after being taken, it would again be in the owner’s possession. And so in this case, if the animal after being branded escaped and returned to its accustomed range, it would be a fresh theft, and Canter testified he saw appellant driving this animal from it's accustomed range.

Another contention made by appellant in the motion for a rehearing is that the court erred in holding that the evidence was sufficient to support a finding that Brown and Carr were the owners of the animal, in that the evidence showed it was Guedry’s property, and that the evidence merely showed that Brown and Carr had charge of Gue-dry’s cattle running on that range, and did not show the specific time when they had charge of the cattle; that had means past. No such fine-spun distinction was assigned as error in the motion for a new trial. The only ground in the motion for new trial relating to this matter is the twelfth, which reads as follows: “The court erred in instructing the jury to convict the defendant if they believed he fraudulently took from the possession of Brown and Carr one head of cattle, and that said Brown and Carr were at the time the owners of said cattle, or were in the care and control of the same, because such instruction permitted the jury in the light of the evidence to convict the defendant if they believed that the animal belonged to Brown and Carr, whereas the state never contended that the animal belonged to Brown and Carr, but, on the contrary, undertook to show that one Gue-dry was the owner of the animal, and that the brand of Guedry had been defaced- and changed into the brand which the defendant contended he had purchased, and the evidence having further shown that there was doubt, as to what the original brand on the animal was, even if the same had been- defaced. Hence this instruction as to the ownership of Brown and Garr permitted the jury to convict the defendant, although they should find that the animal was not the property of Guedry.”

Such an issue as presented in this assignment was not raised in the evidence. Brown and Carr did not claim to be actual owners of the animal, but only to have the care, custody, and control of it for Guedry. No witness suggested even that' they were the actual owners.

An issue not raised by the evidence should not be submitted, and, while the question passed on in paragraph 2 of the opinion was raised in appellant’s brief, it was not presented in the motion for a new trial, and should not have been considered by us.

However, the evidence is ample to support the finding that Brown and Carr were the special owners of the cow under the decision of this court. In addition to the authorities cited in the original opinion, see Tinney v. State, 24 Tex. App. 120, 5 S. W. 831, and authorities there cit'ed, and McMullen v. State. 50 S. W. 891. in which Judge Davidson discusses this question.

The motion for rehearing is overruled.  