Opinion
No. 3971.
Decided March 1, 1916.
Theft of a Horse — Wilfully Driving Stock — Accustomed Range.
Where, upon trial of theft of a horse, there was no evidence raising the issue of wilfully driving stock from its accustomed range as defined in article of a horse under article 1353, Penal Code, under a proper charge of the court, of a horse under Article 1353, Penal Code, under a proper charge of the court, there was no reversible error.
Appeal from the District Court of Crosby. Tried below before the Hon. W.R. Spencer.
Appeal from a conviction of theft of a horse; penalty, two years imprisonment in the penitentiary.
The opinion states the case.
J.W. Burton, for appellant. — Cited Long v. State, 46 S.W. Rep., 821; Chambers v. State, 59 S.W. Rep., 261; Sparks v. State, 174 S.W. Rep., 351; Bodine v. State, 174 S.W. Rep., 609; McCampbell v. State, 174 S.W. Rep., 345; Allan v. State, 175 S.W. Rep., 700.
C.C. McDonald, Assistant Attorney General, for the State.
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 wilfully 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.
Affirmed.