LIVING AND DEAD ANIMALS) EVIDENCE. 185 



In a trial for the larceny of a cow it was held not error to 

 allow the hide sold by the defendant to be exhibited to the 

 jury and pieces of the ears and dewlap found at the place of 

 killing to be fitted to the hide in the jury's presence, this 

 being done to identify the animal and show that the marks 

 and brands had been mutilated.^*'' 



It is not necessary to prove by direct evidence that the ani- 

 mal was of some value. This may be shown inferentially.^** 

 In the absence of a market price for the animals, evidence of 

 their actual value is admissible.^*" 



59. Driving Animals from the Range Kindred to the crime 



of larceny is the statutory offense of driving animals from 

 their accustomed range with felonious intent. It was for- 

 merly held in Texas that under an indictment for theft the 

 defendant might be convicted of this offense.^ ^^ But this rule 

 was departed from in a later case, on the ground that the of- 

 fense in question contains other elements than ordinary theft 

 and requires a different character of proof.^'^ 



One who under the owner's instruction drives out of a 

 pasture cattle owned by a third person that had been turned 

 into the pasture without permission, is not guilty of "wilfully" 

 driving them from their accustomed range, though the owner 

 of the cattle owned acres enclosed by his own consent in the 

 pasture without reserving to himself a right of pasturage.^ ^^ 

 The word "wilfully" in this connection means "with evil in- 

 tent or without reasonable ground to beUeve that the act was 

 lawful." ^^* Where by one act the cattle of different persons 



"' State V. Crow, 107 Mo. 341. And see Ledbetter v. State, 35 Tex. 

 Cr. 195. 



"' Houston V. State, 13 Ark. 66. 



"' State V. Walker (Mo.), 24 S. W. Rep. ion. 



'™ Foster v. State, 21 Tex. App. 80; Smith v. State, Ibid. 133; Campbell 

 V. State, 22 id. 262. 



"• Long V. State (Tex. Cr.), 46 S. W. Rep. 821. 



"'Wells V. State (Tex. App.), 13 S. W. Rep. 889. 



"'Yoakum v. State, 21 Tex. App. 260; Mahle v. State (Tex. App.), 13 

 S. W. Rep. 999. 



