¶1Ownership of the animal charged to have been stolen was by the indictment alleged to be in Richard Dismukes. Want of consent to the taking is attempted to-be proven by a witness who claims to have been an agent of Dismukes in the branding- of this animal, and whose agency was derived not from Dismukes but from one Hodges, who told witness that Dismukes wanted him, witness, to brand the calf. Ho-sufficient diligence is shown in the efforts of the prosecution to-have Dismukes present to testify in person with regard to the question of consent, and the evidence shows that Dismukes is-within the reach of process of the court, and that his whereabouts could easily have been ascertained. Nor does the record contain any facts pertinently establishing want of consent on the part of Dismukes. The best evidence of want of consent is the testimony of the owner, and circumstantial will only be-permitted where it is shown that the owner is inaccessible by the use of ordinary diligence, or beyond the reach of legal process.
¶2On the trial the prosecution introduced the record of the mark and brand of Dismukes. It is objected that there is a material difference in the record mark and that actually claimed by Dismukes. This is immaterial unless the mark set out in the indictment had been variant from the one proven. No mark at all is alleged in the indictment. Whilst the law is that “no-brands except such as are recorded shall be recognized in law as any evidence of ownership” (Rev. Stats., Art. 4561), this rule is not applicable to marks. (Johnson v. The State, 1 Texas Ct. App., 333.) A mark may be proven without showing it to have-been recorded, and it is only where a dispute arises about an earmark in a civil case that a reference to the books of marks and brands is decisive of the dispute. (Rev. Stats., Art. 4559.)
¶3It is not deemed necessary or profitable to discuss the several other errors assigned by the appellant, as they are not likely to-*567arise on another tr-'O. Because the record fails to show want of consent of the owner, the judgment is reversed and the cause-remanded.
¶4Reversed and remanded^