The opinion
BEAUCHAMP, Judge.
Appellant was convicted of the theft of one head of cattle and assessed a penalty of six years in the penitentiary.
This is a companion case to No. 22,768 this day decided. (Page 218 of this volume). The complaint with reference to the indictment is the same and the ruling in that case will apply to all of the questions raised in this case except to the plea of former jeopardy.
The animal described by the evidence in this case is a yellow calf, part Brahma and part Hereford. It bears the branding mark of Charles E. Gooding but the brand of appellant’s father had been superimposed over that of Gooding. This was discovered on the 15th of October at the second round-up and division of the cattle, at which' time both appellant and his mother, being present, admitted that the animal belonged to Gooding and it was placed in his pen. A Ranger, who was present and examined it at that time, identified it positively 'as being the same animal which was purchased from appellant on the same date and with the white Brahma and Jersey yearling involved in the former trial. The proof seems clear that the two animals were not stolen at the same time though they were both sold together under the same Bill of Sale. The State offered proof to this ' effect and appellant presented no evidence in denial thereof. His plea of former jeopardy rested upon a finding of fact that the two yearlings were stolen at the same time. This was submitted to the jury and they answered that the things set out in the plea were untrue. The evidence amply supports this finding and fails to support the plea of former jeopardy.
Finding no error, the judgment of the trial court is affirmed.