GALVESTON TERM, 1851.
Linney v. The State.
Putting a new brand on a cow already branded without tho consent of owner is an “altering* of the brand within tile meaning of the statute, although tiie new brand do not interfere with the figure of the old brand.
Appeal from Polk. The appellant was indicted for altering the brand of a cow belonging to Mary Boston. He was found guilty, and fined fifty dollars.
The only question presented was whether tiie evidence proved the ofi'ense charged in the indictment.
Tiie evidence was that the defendant without authority put his brand, L. upon tho side of a cow belonging to Mary Boston, branded with the letters S. B. upon tiie rump.
G. Preacher and J. Davis, for appellant. .
L Tiie proof as shown in the statement of facts does not sustain the charge in tiie indictment. Any stock reiser or butcher would call the act proved against tiie appellant a counter-branding or rebranding. If this be true the statute, has not provided any punishment for the act proved against the appellant.
IT. If the brand was put on the cow by tiie appellant as charged in tiie indictment, and altered or changed the right of property, it would be theft or larceny; and for tills crime tho indictment should have been framed.
III. The word “alter V in tho statute, followed by the words “or deface,” clearly shows that altering a brand means tiie alteration of one letter or character to that of another, which tiie proof in this ease does not establish. The brand of the owner remained unaltered, and not defaced, as appears in proof. To allow the proof to establish the charge in the indictment would be a viola-of the universal maxim ''Allegata etprobata."
Attorney General, for appellee.
. Lipscomb, J..
Tiie counsel for tiie appellant contends that the .brand being so put on did not alter the previous brand, as it neither changed nor defaced the same.
This position is not sound. The words “altering or defacing ” are not synonymous terms. Defacing would be the obliterating; altei’ng would be changing from what it was before into a different brand. The first brand was a particular designation of ownership by which the cattle sc branded could bo i unwn. If another letter is branded on the same beast it no longer is a designation of ownership, although the first letters have not been changed. The cow was dc-ignated as the property of Mrs. Boston from tiie brand S. B.; but when another letter had been put on by branding with L., it was no longer tiie same branu It was altered from S. B. on tiie rump to S. B. on the rump and L. on the side. We believe, then, that putting an additional brand to the one already on is an .alteration of tiie brand, although the last mar not interfere with or change the figure of the first, and that the judgment (if the court below must be'affirmed.
Judgment affirmed.