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: 447
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1875.] SMITH v. THE STATE. 447
Opinion of the Court.
hogs were his property when he drove the sow up ? If he believed
that, he is not guilty, and the jury should not have con
victed him. A fraudulent taking of the property of another
embraces the idea that the taker knew that it was not his own,
and also that it was done to deprive the true owner of it. This
is usually evidenced by its being done in such manner, and under
such circumstances, as to avoid detection, or responsibility
to the true owner. There was no evidence of concealment or
covert action by Smith, tending to show that his taking of the
hogs uwas with a fraudulent intent. We fail to see anything in
his conduct, as exhibited in the record, which should have satisfied
the jury that he did not believe that the hogs were his
property, as he claimed them to be, and, by his witnesses, positively
proved them to be.
One fact relied on to show a fraudulent taking, was his readiness
to deliver up the hogs to Houston. There is conflict of
evidence about that. But suppose there was not, he may have
had sufficient reason for his readiness to give them up by the
visit of three men to his house on this business, one of whom
had a gun.
Another fact relied on to establish the fraudulent taking was
that the mark of the sow was altered, and that, from inspection,
it appeared so. This was also disputed by his witnesses,
both as to the fact and as to his admission of it. This seems to
have been regarded as a very important fact. If its truth had
been in favor of Smith, and he had remained in possession of
the sow up to the time of the trial, there might well have been
some effort to ascertain whether this altered appearance in the
ears of the sow might not have been produced by other means
than that of a fresh marking of the ears.
In order, however, to turn the balance in this conflict of evidence
as to the re-marking of the sow against Smith, Houston
brought the sow to town, and after the matter had been thrown
in doubt by the contradictory statements of the witnesses, the
District Attorney proposed to have the jury leave the box, go
to the place where the sow was put -up, and inspect her ears, so
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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.. (texashistory.unt.edu/ark:/67531/metapth28531/m1/455/: accessed May 26, 2017), University of North Texas Libraries, The Portal to Texas History, texashistory.unt.edu; .