Banks v. State, 27038

• Court: Texas Court of Criminal Appeals
• Writing for the Court: MORRISON
• Citation: Banks v. State, 271 S.W.2d 661, 160 Tex.Crim. 418 (Tex. Crim. App. 1954)
• Decision Date: 23 June 1954
• Docket Number: No. 27038,27038
• Parties: Ernest Carroll BANKS, Appellant, v. The STATE of Texas, Appellee.

Page 661

271 S.W.2d 661

160 Tex.Crim. 418

Ernest Carroll BANKS, Appellant, v. The STATE of Texas, Appellee.

No. 27038.

Court of Criminal Appeals of Texas.

June 23, 1954.

A. W. Lair, Canyon, for appellant.

Wesley Dice, State's Atty., Austin, for the State.

MORRISON, Judge.

The offense is cattle theft; the punishment, five years.

The Ramming ranch, under the control of E. A. Ramming, adjoined that of L. P. Eakin. The witness Gardzelik, brother-in-law of Eakin, farmed some of Eakin's land and was familiar with the kind, description and brand of his (Eakin's) cattle. On or about October 10, 1951, Gardzelik saw a large black steer which he recognized as belonging to Eakin 'over in the Ramming pasture.' On the following day, the witness told Eakin of seeing his steer in Ramming's pasture. He did not, however, see the steer again.

The witness Burden, buyer for the Panhandle Packing Company at Pampa, testified that on or about October 10, 1951, he purchased a black steer from appellant, paying him $212.50 by check.

The witness Burden further testified that upon the previous day some person called him over the telephone, described a steer to him, and asked what amount such a steer would likely bring on the market. When appellant brought the steer in the next day he recalled to the witness that he was the man who had telephoned him. After the purchase, Burden placed the steer in a pasture and some nine days thereafter sold him, along with others, to a buyer from California.

Thereafter, L. P. Eakin, accompanied by his wife, went to Blythe, California, and there found in the Union Stock Pens a steer which Mrs. Eakin testified was the missing one. Several pictures were made of the steer. These were offered in evidence and identified by the witness Burden as pictures of the steer purchased from the appellant.

L. P. Eakin having died after the prosecution had begun and before trial, Eakin's non-consent to the theft was shown by circumstantial evidence.

Testifying as a witness in his own behalf, appellant protested his innocence. He said that he purchased the steer from E. A. Ramming in good faith, upon the representation of Ramming that he owned the steer.

The State introduced testimony showing that Ramming owned no cattle at the time.

If we correctly understand the State's theory under the facts presented, it is that in pursuance of a prior agreement Ramming stole the steer and appellant thereafter sold it, and he and Ramming divided the proceeds from the sale.

There is an absence of any testimony showing that the fences were down or that the steer may have strayed from the Eakin pasture into the Ramming pasture.

We shall now discuss the contentions presented by appellant's able counsel who represented him on appeal only.

Bill of exception No. 1 recites that the district attorney in his closing argument said, 'Gentlemen of the jury, we used to hang these cow-thieves in...