[No. 36681⁄2.]

#### W. H. Misseldine *v.*The State.

Hog Theft—Fact Case.—See the statement of the ease for evidence *held*insufficient to support a conviction for the theft of hogs under the value of twenty dollars.

Appeal from the County Court of Palo Pinto. Tried below before the Hon. E. K. Taylor, County Judge.

The conviction in this case was for the theft of three hogs, of the value of twelve dollars, the property of D. A. Farris, in Palo Pinto county, Texas, on the tenth day of April, 1885. A fine of ten dollars was the penalty imposed upon the appellant.

Dorcas Ann Farris was the first witness for the State. She *336testified that she lived in the town of Palo Pinto. Early in the spring of 1884, the witness purchased a sow and five pigs from Mr. Alexander Jackson White, which he, White, got from Mr. Parish. The witness fattened, and, about Christmas, killed the sow. On or about the tenth day of April, 1885, the defendant took three of the pigs from the witness’s pen, the other two having died from the effects of eating cotton seed. The pigs taken by the defendant were some thing over a year old. One of them was a black, bald faced pig, and the other two were sandy, spotted, colored pigs. Witness fed those pigs in her pen almost the entire time she owned them, until .they were taken by defendant, and she knew them to be her.pigs. She did not know the marks on the pigs when she bought them. Her son John changed the mark in the right ear of each pig after witness’s purchase, but witness did not know the mark in which he put them. Witness had no regular hog mark. When not in the pen, the animals ran in the McQuerry hollow and about Slaughter’s place. Witness saw the defendant take the pigs from her pen. Defendant came to witness, at Mr. Eedus’s house, and asked her whose pigs she had in her pen. She replied that they belonged to her. He then asked her where she got them, and she replied that she got them from a man. Defendant said that they belonged to him, and went to the pen, turned the pigs out, and drove them off. Two or three days later the pigs came back, and witness put them back in to the pen. On the tenth day of April, 1885, being a few days later, the defendant again came to witness’s house, turned the pigs out of the pen, and drove them off. Witness was then at the house of Mr. Schoolcraft, across the street from her house, and saw the defendant turn the pigs out and drive them off. She said nothing to him, and he drove the pigs off towards town. The witness whs absolutely certain that those were her pigs, and the same animals she got from Mr. White. They were taken without the witness’s consent, and she has not seen them since. The animals were worth about a dollar and a half each. The black, bald faced pig’s ears were torn off, about Christmas, 1884, when the witness’s sons penned it.

John Penny testified, for the State, that he was the son of Dorcas Ann Farris. Mrs. Farris got a sow and some pigs from Mr. White, in the spring of 1884. The pigs were then marked. Witness changed, the mark in the right ear of each pig in to his mark, but could not change the mark in the left ears. Ben Westmoreland held the pigs while the witness changed the right *337ear mark. The animals ranged about McQuerry’s hollow until near Christmas, 1884, when witness penned them, in doing which the ears of the black, bald faced pig were torn nearly entirely off by the dogs. Witness had seen the three pigs taken from the pen of his mother, by the defendant, and was confident that those pigs were three of the animals Mrs. Farris got from Mr. White.

A. J. White testified, for the State, that, in the spring of 1884, he sold a sow and five pigs to Dorcas Ann Farris, which he previously got from W. C. Parish. The pigs were marked, but witness could not remember how. Witness, on the day of this trial, examined the three animals involved in this trial, and, to him, they strongly resembled three of the animals he sold Mrs. Farris. Those pigs would be now about fourteen months old. Witness could not swear positively to their identity, but it was his opinion that they were Mrs. Farris’s pigs.

Ben Westmoreland testified, for the State, that he had been living at Mrs. Farris’s for three or four years past. He knew that Mrs. Farris got a sow and pigs from White in the spring of 1884, but he did not remember the number of the pigs. The pigs were marked when Mrs. Farris got them, but witness did not remember the mark. John Penny changed the mark, but witness did not remember how. Witness held the pigs while John changed the marks. One of the pigs was a black, bald faced pig with some white feet, and two of them were sandy spotted cplored pigs. Witness was positively satisfied that the bald faced, black pig in defendant’s possession was Mrs. Farris’s pig. He could not swear that the other two belonged to her, but they strongly resembled two of the pigs she got from White.

C. A. Redus testified, for the State, that one day he and others got to joking defendant about stealing Mrs. Farris’s pigs. Defendant, who had a horn, replied that he knew the hogs were his, and that his hogs would answer his horn call by coming to him. He blew a blast on his horn, but no hogs appeared. Defendant claimed to own the hogs. This was after this prosecution was instituted. The State closed.

William Edgin testified, for the defense, that in July, 1884, he sold the defendant a black, white faced shoat, with some white feet. That shoat would be about fourteen months old at the time of this trial. Witness had seen the three animals involved in this prosecution, and was of the opinion that the black, white faced pig was the same animal he sold defendant in July, 1884.

*338Mrs. Brack, the defendant’s mother-in-law, testified in his behalf, that she knew the three hogs involved in this prosecution. Defendant got the black hog from Mr. Edgin, and the other two from Job Jones.

Ollie Kennedy testified, for the defense, that he lived at the McQuerry place during the summer of 1884. He knew three pigs, a black, bald faced animal and two sandy spotted animals, that ranged in the McQuerry bottom. He understood that defendant owned those animals. Witness was at defendant’s house in the spring of 1884, and saw the same pigs in the defendant’s pen. The animals described frequently broke into the witness’s field. On one such occasion witness’s children dogged them, and the dogs tore off the ears of the black hog.

William Crenshaw testified, for the defense, that the hogs in controversy were hogs which, ever since he had known them, had been in the defendant’s mark, and had been claimed by the defendant as his property. The marks of the hogs were two swallowforks in the left ear, and a crop and over half crop in the right ear. The defense closed.

The State introduced- the record of marks and brands of Palo Pinto county, which showed the defendant’s hog mark to be two swallowforks in the left ear, and a crop and *under.halt*crop in the right ear.

The motion for new trial raised the questions discussed in the 'opinion.

No brief for the appellant.

*J. H. Burts,*Assistant Attorney General, for the State.

Opinion delivered May 19, 1886.

Hurt, Judge.

The defendant in this case was tried and convicted of the theft of hogs, of value under twenty dollars, and the property as alleged, of one Farris.

If this had been a trial of the right of property between the defendant and the prosecutor, and the evidence adduced in this trial had been the same as found in the record before us, and there had been a verdict in the case, we would not feel authorized to disturb it, whether in favor of one or of the other. Such being the state of the evidence, we cannot allow this conviction to stand. (The Reporters will state the' evidence in full.) The judgment is reversed and the cause remanded.

*Reversed and remanded.*