Ashcraft v. State, 24745

• Decision Date: 03 May 1950
• Docket Number: No. 24745,24745
• Citation: 155 Tex.Crim. 1,229 S.W.2d 813
• Parties: ASHCRAFT v. STATE.
• Court: Texas Court of Criminal Appeals

Page 813

229 S.W.2d 813

155 Tex.Crim. 1

ASHCRAFT v. STATE.

No. 24745.

Court of Criminal Appeals of Texas.

May 3, 1950.

Rehearing Denied May 31, 1950.

Bartlett & Bartlett, Marlin, for appellant.

George P. Blackburn, State's Atty., of Austin, for the State.

WOODLEY, Judge.

Appellant was convicted of felony theft under an indictment charging the theft of 71 sacks of cottonseed meal, of the value of $4.00 each, and of the aggregate value of $284.00 from the possession of John Lackey, the alleged owner.

Eugene J. Schmidt was the owner of a cotton gin in the town of Rosebud, and in his absence, John Lackey was in charge of the gin plant. The cottonseed meal was actually owned by Schmidt and was stored in the gin building, to be sold and exchanged in connection with the business of the gin.

Mr. Schmidt was properly permitted to testify as to the market value of the cottonseed meal in Rosebud, on November 21, 1948. The court's qualification to this bill of exception shows that the witness was qualified to give such testimony. It is immaterial that he was not, at such time, present in Rosebud, he being acquainted with the market value regarding which he testified.

According to the confession of appellant, he entered the room or shed where the meal was stored about 3 o'clock in the morning, and removed a number of sacks of cottonseed meal, loaded it on a truck and drove to Somerville, Texas, where he sold it to two men whom he identified.

These parties testified and produced cancelled checks payable to appellant, one for $110.00 containing the memorandum 'For 30 sacks of cottonseed meal,' and another for $99.00 bearing the notation 'For 33 sacks of meal,' and each indorsed by appellant.

The actual owner, Eugene J. Schmidt, testified that on November 21, 1948, the time of the alleged theft he was in Memphis, Tennessee, and did not return to Rosebud until November 24th.

Over appellant's objection that it was hearsay, he was permitted to testify that 71 sacks of meal were missing.

In view of other testimony admitted without objection, we fail to see any injury to appellant in the admission of such testimony.

The same witness, Schmidt, testified: 'There was some cottonseed meal returned to me by Brady Pamplin, the Sheriff of Falls County, Texas, subsequent to the 21st day of November, 1948. I believe there were 50 bags or thereabouts returned. The bags that were returned to me had Southland Cotton Oil Company, Temple, Texas, on them. I could identify them as being the same lot that had been in my gin prior to the 21st of November, 1948.'

And on cross-examination: 'Mr. Ashcraft paid me for 23 sacks of cottonseed meal. I believe I said there were 50 missing but there were 48. I got the other back.'

John Lackey testified: 'I recall that there was some cottonseed meal taken from the gin on the 21st day of November last year or sometime during that night. I discovered the loss of the meal. I gave no one my consent or permission to go in there and take 71 sacks of cottonseed meal.'

Admission of hearsay testimony does not constitute reversible error if the same facts were proved by admissible evidence or by evidence which was not objected to. See 4 Tex.Jur. 586, Sec. 414.

Upon a charge under separate indictment, appellant was convicted previously of the burglary of the gin building and received a suspended sentence. Appellant's plea of former jeopardy based upon such conviction of...