
    HUDSON v. STATE.
    (No. 3971.)
    (Court of Criminal Appeals of Texas.
    March 1, 1916.)
    Larceny @=368(1) — Issues—Evidence.
    Where defendant was accused, under Pen. Code 1911, art. 1353, of having stolen a horse, evidence that, when he took possession thereof, he did so under claim of ownership, telling witnesses that he had bought the animal, is insufficient to require submission of the issue whether defendant was guilty of willfully driving stock from its accustomed range under Pen. Code 1911, art. 1356.
    [Ed. Note. — Eor other- cases, see Larceny, Cent. Dig. §§ 180, 181; Dec. Dig. <S==>68(1).]
    Appeal from District Court, Crosby County; W. R. Spencer, Judge.
    Willis Hudson was .convicted of larceny, and he appeals.
    Affirmed.
    J. W. Burton, of Crosbyton, for appellant. O. C. McDonald, Asst. Atty. Gen., for the State.
   HARPER, J.

Appellant was convicted of theft of a horse, the property of C. D. Caldwell, and his punishment assessed at two years’ confinement in the state penitentiary.

No exceptions were reserved to the introduction of any testimony, and no exceptions reserved to the charge of the court. However, appellant in his motion for a new trial complains that the court erred in not submitting the issue of whether or not appellant was guilty of willfully driving stock from its accustomed range as defined in article 1356 of the Penal Code, claiming the evidence raised that issue, and, if they so found, to acquit him, as he was charged with theft of the horse under article 1353.

According to our view of the testimony, there was no evidence raising that issue. It is true there is a suggestion the animal might have been on the range when he took possession of it, but the evidence and all the evidence is that, when he took possession he did so under a claim of ownership, telling two men that he had bought the animal from a man he did not know, near Lubbock.

This issue was fairly submitted in the charge, and the judgment is affirmed.  