Banks v. State

• Decision Date: 19 May 1909
• Citation: 119 S.W. 847
• Parties: BANKS v. STATE.
• Court: Texas Court of Criminal Appeals

119 S.W. 847

BANKS v. STATE.

Court of Criminal Appeals of Texas.

May 19, 1909.

Appeal from Travis County Court; Jno. W. Hornsby, Judge.

R. D. Banks was convicted of theft, and appeals. Reversed.

C. B. Giles, for appellant. F. J. McCord, Asst. Atty. Gen., for the State.

DAVIDSON, P. J.

Appellant was charged with the theft of several cords of wood. Upon trial he was convicted, and his punishment fixed at a fine of $50 and 10 days' confinement in the county jail.

We are of opinion that the insistence of appellant that the evidence is not sufficient to support the conviction is correct. The alleged owner, Sakewitz, testified that he was the owner of a wood lot 10 miles south of Manor, in Travis county, lying between two public roads; that some time in January, 1908, appellant cut for witness from said wood lot 3 cords of wood, which witness hauled away; that one Hinton Banks, with whom appellant was temporarily residing during the months of January and February, 1908, lived east of and about 100 yards from said wood lot, and just across one of the public roads above mentioned; that witness lived about 15 miles northwest of said lot; that witness employed appellant to cut wood from said lot during the month of February, 1908; that appellant cut from the lot 8 cords of wood, and on February 22d delivered same to witness in stacks on said lot; that on the 19th of February appellant was seen coming from the wood lot and going in the direction of Hinton Banks', at whose house he was taking his meals and sleeping; that defendant had an ax on his shoulder and was walking by the side of or behind a wagon upon which was about a half cord of green split wood; that one Isaiah Banks, son of Hinton Banks, was riding on and driving said wagon; that said wagon came at least from 200 yards down in said wood lot, and maybe from the other side and out into the public road; that, in response to a notice from appellant, witness went after his wood, and went down on said wood lot, and got 8 cords of wood; that there was missing from said wood lot somewhere from 3 to 20 cords of wood, judging from the number and size of "fresh-cut" stumps, variously estimated by the different witnesses; that some of the stumps were from a foot to a foot and a half in diameter; that witness followed the wagon tracks from near where appellant had cut wood to the public road between said Hinton Banks' house and said wood lot. Another state's witness followed these tracks, which he swore were the same tracks, up to a wood pile near said Hinton Banks' house, and through gates where he found a wagon loaded with about half a cord of green split wood; that appellant, at the request of witness and his brother-in-law, followed the said tracks part of the way with them, but stopped before they got to the house, and went off another way; that these witnesses told appellant that there was going to be trouble, and appellant said he had not stolen any wood; that the complaining witness went up to Hinton Banks' house and asked appellant where his wood was; that appellant replied that it was down there, pointing to the wood lot. Witness then asked appellant to go with him and point out same to him, which he (appellant) did. Witness then asked appellant where he had placed the wood which had been cut at a certain place where 15 or 20 trees had been cut, and which the witness said...