of sheep. Defendant appeals from a judg. ment of conviction. Reversed.

B. F. Crosby and W. P. Lench, for appellant. Richard H. Harrison, Asst. Atty. Gen., for the State.

more

In

DAVIDSON, J. Appellant was convicted on an indictment charging him with the theft of 27 head of sheep in the first count, and in the second for receiving and concealing same, knowing same to have been stolen. On the trial he was convicted under the second count. On the trial of the case the learned trial judge charged the jury with regard to the penalty as follows: "The punishment for the theft of property of the value of $20 or over is by continement in the penitentiary for any term not less than 2 years nor than 10 years, " etc. "The punishment for receiving and concealing stolen property, knowing it to have been stolen, is the same as it is for theft." The charge of the court as to the penalty above set out was specially excepted to, and a bill of exceptions reserved by defendant's counsel. The penalty, as charged by the court, was that prescribed by article 735, Pen. Code, for theft generally of property amounting in value to $20 or more. this case, however, the appellant was indicted for the theft of sheep. To this offense a special penalty is by statute affixed. Article 748 of the Penal Code provides that if any person shall steal any sheep, hog, or goat, if the value of the property stolen be of the value of $20 or over, he shall be punished by confinement in the penitentiary not less than two nor more than five years; and, the offense for which appellant was indicted, tried, and convicted being the receiving of stolen property, the penalty, by express provision of the statute. is made the same as though he had stolen the specific animal. Article 743, Pen. Code. The rule is well settled that where the charge of the court misleads the jury as to the penalty, or prescribes a penalty different from that fixed by the terms of the law itself, such charge is radically and fundamentally erroneous, whether excepted to or not, and even though it inures to the benefit of the accused. Graham v. State, 29 Tex. App. 86, 13 S. W. Rep. 1013; Williams v. State, 25 Tex. App. 76, 7 S. W. Rep. 661. For collation of other authorities, see Willson, Crim. St. § 2348. We know of no exception to this rule, save the case of Work v. State, 3 Tex. App. 233, which seems to announce a different doctrine, and that case is hereby overruled on this point. This is the only error which we consider material and necessary to be noticed, and, on account of this error, the judgment is reversed, and the cause remanded. All judges present and concurring.

TITTLE V. STATE.

(Court of Appeals of Texas. Dec. 22, 1891.) THEFT OF CATTLE-EVIDENCE OF OWNERSHIP-IN

STRUCTIONS.

1. Rev. St. art. 4561, which provides that no brands except such as are recorded shall be recognized in law as any evidence of ownership of cattle, does not prevent proof of identity and ownership of cattle by a witness who testifies

that from the brands, as flesh-marks upon cer tain hides, he knows that the hides came from off certain particular animals.

2. On a trial for theft of cattle, the testimony of the prosecutor who examined the hides of slaughtered cattle which defendants had sold left it doubtful as to whether he knew the particular cattle in question to be his from an unrecorded brand on the hides, or knew it independently of the existence of the brand. Held, that the court erred in refusing to charge that ownership was not proven if the evidence thereof depended upon the unrecorded brand.

3. On the trial of defendants jointly indicted for theft of cattle from B., an instruction that "before you can convict these defendants, or either of them, you must be satisfied beyond a reasonable doubt that the defendants,

both or one of them, committed the theft themselves, or that others committed the theft, and these defendants, both or one of them, was present and aided by acts ✶ ✶ ✶ those committing the theft," is erroneous, as authorizing a conviction of both defendants on proof of the guilt of either.

Appeal from district court, Dallas county; R. E. BURKE, Judge.

Indictment of Tol Tittle and another for theft of cattle. Defendant Tittle appeals from a judgment of conviction. Reversed. Bassett, Seay & Muse, for appellant. Richard H. Harrison, Asst. Atty Gen., for the State.

HURT, J. Theft of cattle the alleged property of J. W. Bardwell. The first question we desire to notice is whether the evidence is sufficient to prove that the cattle sold in Dallas to the Dallas PackingHouse Company were the property of the prosecutor. Bardwell; that is, was the proof of ownership in Bardwell legally made? Bardwell states that "when I came to Dallas I found that 7 head of steers had been sold to the packing company, and I found 7 hides in Doran's hide cellar at the slaughter-house. I identified the 7 hides by my brand, which was a J. blotch brand on the hides thus, Jo. I knew the cattle that were stolen from me by my said brand. That brand was on the 7 hides found by me in Dallas, and 1 identified the hides by that brand. The said J. blotch brand is not and never has been recorded. I have another brand, thus +W+, which is recorded in Ellis county, but that brand was not of any of the cattle stolen from me. Two of the 7 head of steers, one a deep red and the other a roan, were branded thus, H, which is the Herren brand. Two were branded - L-in the Jack Lemon brand. The Lemon steers were of a deep red color. One steer was red and white spotted in color, and branded §, which was the Dick Stout brand. The other two steers I cannot describe. The whole seven head were branded with my J. blotch brand. I would swear to the seven head of cattle by the flesh-marks, because I know I had put the J blotch brand on them. I would not swear, and could not, that Herren, Lemon, and Stout did not have other cattle in their respective brands similar in description to the said cattle described by me. I do not know that I would swear to the 7 head of cattle if it were not for the J⚫ brand on the hides. I would disclaim the cattle if it were not for the J■ brand on them. I

ADVERSE POSSESSION.

What constitutes.

1. In ejectment, where the defense is adverse possession, an instruction which requires that defendant shall have asserted his title against all the world is properly refused, since the assertion as against plaintiff is sufficient as to him. -Mather v. Walsh, (Mo. Sup.) 17 S. W. 755.

2. Where one through mistake takes possession under a deed of more land than it conveys, he may, notwithstanding, begin later an adverse occupancy of the excess.-Mather v. Walsh, (Mo. Sup.) 17 S. W. 755.

3. In 1874 M. went into possession of several inclosed lots, claiming under a deed which did not convey one of them, but which he supposed covered all. In 1876 he discovered, on returning from a trip, that his wife had been paying special taxes on all the lots. After examining his deed, and finding that it did not cover the lot in question, he at once paid all back taxes on it, and obtained a certificate of purchase for such delinquent taxes in August, 1876. Afterwards he continued in possession, claiming exclusive ownership. In November, 1877, he received a tax-deed based on the certificate of purchase, and afterwards paid all taxes. In 1876 he moved upon the lot, repaired the fences, and afterwards erected a building on it. An action to recover the lot from him was commenced in October, 1887. Held, that there was evidence to submit the question of adverse possession for 10 years.-Mather v. Walsh, (Mo. Sup.) 17 S. W.

755.

4. Defendant in ejectment conveyed land to plaintiff, his mother, by deed duly executed and

recorded. The evidence showed that the consid eration named in the deed never passed, or was intended to pass; that defendant remained ir open, notorious, peaceable, and continuous pos session of the premises for more than 20 years after the deed to plaintiff was made, and before the action was brought, using and improving the same as if it were his own, with the knowledge and almost in the immediate presence of plaintiff, who never charged, demanded, or received from defendant any rent for the premises, nor was she ever recognized by an act of his as his landlord. The evidence further showed that declarations

had been made by plaintiff that the land was de fendant's, and that it was reputed among the neighbors as his. Held, that this was such ad. verse possession as would bring it under the stat ute of limitations.-Brown v. Brown, (Mo. Sup.) 17 S. W. 640.

5. Where one having surveyed and marked off uninclosed land makes a rightful entry under a deed from the owners, and thereafter remains in possession, adverse possession cannot be acquired therein against him by one who, not having theretofore claimed the right, enters while the first person is in possession.-Townsend v. Chenault, (Ky.) 17 S. W. 185.

tle by adverse possession. -Miller v. McDowell, (Ky.) 17 S. W. 482.

7. In trespass to try title by R. against the heirs of S., including his widow, L., and M., a person to whom she had executed a bond for title parties, was entered that plaintiff recover half to part of the land, judgment, by agreement of the lands and defendants the other half, partition to be made by commissioners, so that the allotment to defendants should include the land sold by defendant L. to co-defendant M., deeds to be executed by each party to the other, according to the commissioners' report. Held that, M. having entered into possession of the land under a bond for title which recited that the land belonged to the estate of S., and that a deed would be given as soon as a division could be made, his possession would not commence to be adverse to the heirs of S., at least until after the rendition of the judgment in the suit brought by R.-Smith v. Lee, (Tex. Sup.) 17 S. W. 595.

8. Where defendant sold by parol, for valuable consideration, with his wife's knowledge and consent, a portion of their homestead, and the grantee remained in continuous, peaceable, and adverse possession for 15 years, the grantee had Rev. St. Tex. art. 3196. Bridges v. Johnson, 7 S. acquired title by limitation alone, as allowed by W. 506, 69 Tex. 714, followed.-Roemer v. Meyer, (Tex. Sup.) 17 S. W. 597.

Of military boundary lands.

9. Open and notorious adverse possession of military bounty lands by fencing and leasing the same, and pasturing cattle thereon, for the statutory period of limitation of two years, (Gen. St. 1866, p. 745, $ 1,) prior to an action for recovery of the land, gives one in such possession a good title, whether he has color of title or not -Bushey v. Glenn, (Mo. Sup.) 17 S. W. 969.

Acquisition of outstanding title.

10. One in adverse possession of land may aoquire any outstanding interest without weakening the effect of his possession.-Mather v. Walsh, (Mo. Sup.) 17 S. W. 755.

11. The purchase of a tax-title by one in adverse possession of land is not an admission by him of prior possession in another.-Mather v. Walsh, (Mo. Sup.) 17 S. W. 755. Character of occupancy.

12. Where one buys land, and places his sons in possession, with the understanding that they are to improve the same and pay all taxes, they merely become his tenants, and the father may claim the benefit of the statute of limitations under their possession. — Chamberlain v. Pybas, (Tex. Sup.) 17 S. W. 50. Color of title.

13. One who holds land under a contract of sale which is void does not hold under such color of title as will preclude a recovery under the three-years statute of limitations.-Green v. Hugo, (Tex. Sup.) 17 S. W. 79.

14. In Missouri, under the statute, color of title is not necessary to support adverse possession.-Mather v. Walsh, (Mo. Sup.) 17 S. W.

755.

The

Agency.

Aggravated Assault.

Agreed Case.

Alcoholic Liquors.

Alibi.