61 S.W. 489 (Tex.Crim.App. 1901), Dawson v. State

Citation:61 S.W. 489
Opinion Judge:BROOKS, J.
Party Name:DAWSON v. STATE. [1]
Attorney:Wilson & Kinder, for appellant. Cowan & Burney and D. E. Simmons, Acting Asst. Atty. Gen., for the State.
Case Date:February 06, 1901
Court:Court of Appeals of Texas, Court of Criminal Appeals of Texas
 
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Page 489

61 S.W. 489 (Tex.Crim.App. 1901)

DAWSON

v.

STATE. 1

Court of Criminal Appeals of Texas

February 6, 1901

Appeal from district court, Floyd county; S. I. Newton, Judge.

T. E. Dawson was convicted of cattle theft, and he appeals. Reversed.

Wilson & Kinder, for appellant.

Cowan & Burney and D. E. Simmons, Acting Asst. Atty. Gen., for the State.

BROOKS, J.

Appellant was convicted of cattle theft, and his punishment assessed at two years' confinement in the penitentiary. We quote from appellant's brief a statement of the facts, which we deem substantially correct, to wit: "The sheriff of the county and his deputy went to defendant's house about August 22d, and some 10 days before

Page 490

the court convened at which defendant was indicted, for the purpose of examining defendant's stock of cattle. They reached defendant's home about 9 o'clock at night, and, after the usual salutation, stated to him their business; to which, so far as the sheriff and his deputy state, defendant made no objection, but willingly gave them his assistance. They made an examination of the cattle in the corrals of defendant, and claimed to have found 24 calves for which they saw no mothers. These witnesses testify, in substance, that defendant claimed all the cattle they saw, although no animal or animals were especially pointed out to him. Defendant, when court convened, was brought before the grand jury, and interrogated as a witness, after being warned. Whether he was warned before or after he was sworn seems to be in dispute. At any rate, defendant was then and there called upon to state why he had 24 motherless calves in his corrals and about his place at the time of the sheriff and his deputy's nocturnal visit. He answered that if he had that many calves it was strange, and made no further explanations, if any were sought by the grand jury. The evidence of the sheriff and his deputy, as to the excessive number of calves, is corroborated by Sam Moore, who some time previous to the sheriff's visit examined defendant's cattle on the open range, about one-half mile from defendant's house, and counted defendant's cattle. Neither defendant, nor any one representing him, was present, and this seems, upon the part of the witness Sam Moore, to have been strictly an ex parte proceeding. At any rate, be testifies he found more calves than there were cows. This is about the state's...

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