Franklin v. State

1. Theft of Horse—Name of Owner—Variance. Where an indictment for horse theft alleged the name of the owner to be J. Alderete, and theproof showed it to belong to Josianca Alderete. Held: No variance; the initial letter, in the Christian name proved, being the same as that in the indictment; the pronunciation of the name as “Hose,” or “Jose,” is immaterial. 2. Same—Falsity of Explanation of Possession—Circumstantial Evidence —Charge. On a trial for horse theft, it was not error for the court to charge, in effect, that the falsity of defendant’s explanation of his possession could be shown by circumstantial evidence.

Appellant and one W. Walling were jointly indicted for the theft of the animal, which was alleged to be the property of J. Alderete. There was a severance granted, on the motion of defendant, Walling, and this appellant was alone placed upon trial. In brief, the facts were that: Alderte missed his gray horse about September 1, 1896. The horse was found in the possession of defendant in Bandera County on September 16, about 225 miles from the place where he was stolen. Appellant was seen in and around San Angelo about the time of the theft, and about the time of the theft disappeared. It also appears he owned a little mule, which was also found in his possession at the time of his arrest. While there is a slight discrepancy as to the brand on the stolen horse, as described by the party arresting appellant and the description given by the owner, yet it is made clear that the horse found in appellant’s possession was the same identical one stolen from Alderete. When arrested, appellant was asked where he got the horse. He stated he traded for it or got it from a Mexican in trade. Defendant’s counsel asked the court to instruct the jury: “That the burden is upon the State to show that the horse alleged in the indictment to have been stolen from J. Alderete, was stolen from J. Alderete, and proof that the horse was stolen from Hoseanca Alderete or Joe Alderete will not warrant a conviction in this case without further proof that J. Alderete and Hoseanca or Joe Alderete were one and the same person.”