Cases argued and decided in the Supreme Court of Texas, during the latter part of the Tyler term, 1874, and the first part of the Galveston term, 1875. Volume 42. Page: 519
viii, 704 p. ; 22 cm.View a full description of this book.
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1875.] ALLEN v. THE STATE. 519
Opinion of the Court,
property of Fred House, save the fact that it had the mark
asid brand which House and other witnesses testified was his
mark and brand. It was these statements, in connection with
defendant being one of the hands engaged in driving the herd
of cattle in which the cow was found, that caused his conviction.
This evidence ought not to have been admitted until
proof was made of the recording of the mark and brand, as
required by law. We do not say that proof of ownership by
flesh marks, the peculiar formation of the animal's horns, or
other satisfactory evidence of ownership, might not be made;
but we repeat, where a party or the State desires to introduce
the mark and brand as evidence, preliminary proof that the
same is recorded is absolutely necessary. There was no error
in the admission of the evidence of House and others as to the
gathering up of droves of cattle, the herding of the same by
defendants in DeWitt county, the bringing a portion of the
drove from Karnes county, and the renting of a pasture by
Tennelle, one of the defendants, about the time of their starting
from DeWitt; these facts constituted a part of the history
of the whole transaction, of which the alleged theft was the
principal fact.
Independent of the admission of illegal matter, in making
the mark and brand, without evidence of recording, proof of
ownership, and for which the judgment must be reversed and
the cause remanded, the evidence in this case, admitting even
the ownership of the cow by House, is not of that character
to lead the mind to a deliberate conclusion that the conviction
in this case was fully warranted by all the facts, and the spirit
of our laws. Out of the six persons indicted, a severance being
had, defendant is tried alone. The witnesses for the State show
that he, like others of his age in Western Texas, was in the
habit of hiring himself to different persons to bunt or drive
stock; that the herd in which the cow was found was driven
by four or five persons, of which he was one; that the drove
contained about five hundred head, with a great variety of
brands; that the herd was under the control of defendant's
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Texas. Supreme Court. Cases argued and decided in the Supreme Court of Texas, during the latter part of the Tyler term, 1874, and the first part of the Galveston term, 1875. Volume 42., book, 1881; St. Louis, Mo.. (https://texashistory.unt.edu/ark:/67531/metapth28531/m1/527/: accessed May 2, 2024), University of North Texas Libraries, The Portal to Texas History, https://texashistory.unt.edu; .