Bussell v. State

• Decision Date: 05 March 1941
• Docket Number: No. 21464.,21464.
• Citation: 148 S.W.2d 413
• Parties: BUSSELL v. STATE.
• Court: Texas Court of Criminal Appeals

148 S.W.2d 413

BUSSELL v. STATE.

No. 21464.

Court of Criminal Appeals of Texas.

March 5, 1941.

Commissioners' Decision.

Appeal from District Court, Deaf Smith County; James W. Witherspoon, Judge.

J. M. Bussell was convicted of theft of cattle, and he appeals.

Affirmed.

E. T. Miller and Cleo G. Clayton, Jr., both of Amarillo, for appellant.

Lloyd W. Davidson, State's Atty., of Austin, for the State.

KRUEGER, Judge.

The conviction is for theft of cattle. The punishment assessed is confinement in the state penitentiary for a term of two years.

The first contention made by appellant is that the evidence is insufficient to justify and sustain his conviction. In order that this opinion may reflect the basis for our conclusion, we will briefly state the testimony adduced by the State.

Mrs. C. M. Brown, in the early part of the year 1940, owned approximately 200 head of cattle which were located on her farm in Deaf Smith County. About 160 of these cattle were white-faced steer and heifer yearlings, and they were being fed in a feed pen. Charley Brown, a son of Mrs. Brown, was feeding and taking care of the cattle. These cattle, with the exception of 46 head, had been purchased by Mrs. Brown and carried different brands. Some were branded a figure "7" with a round top, and some a figure "7" and also a swastika on the left thigh. The cattle broke out of the feed pen and strayed away. About February 14th, Charley Brown rounded them up and placed them back in the feed pen. He then counted them and found that 9 of such cattle were missing.

On the 2d day of February, 1940, W. R. Bussell, a brother of appellant, sold 12 head of one-year-old white-faced cattle through the auction ring at Lubbock. Eight of said 12 cattle were sold to a cattle company in Cedar Rapids, Iowa. Sometime later, the time being left in a state of uncertainty, Charley Brown went to Cedar Rapids, Iowa, and found 5 white-faced steer yearlings bearing the same brand as those which his mother had purchased and had on feed. On the night of May 12, 1940, appellant was arrested by several Texas Rangers and members of the New Mexico State Police, carried to the court house at Farwell, where, after being questioned by the officers for several hours, he made a written confession in which he stated that on the night of February 1, 1940, he and his brother (W. R. Bussell) went to the feed pen of Mrs. Brown, cut out 9 steer yearlings and drove them home, where he and his brother loaded them in a truck. His brother said he was going to take them to Lubbock and sell them. On or about the 6th of February, W. R. Bussell gave appellant a check in the sum of $125 as his part of the proceeds of the sale of said cattle.

Appellant testified in his own behalf upon the trial. He repudiated his confession and claimed that he was threatened by the officers with physical violence and as a result of such he made the confession in question. He admitted, however, that he was not mistreated in any manner, but only threatened by the officers, which they emphatically denied. He testified that the check in the sum of $125 was given him by his brother for labor and services rendered.

Appellant contends that the State relied entirely upon his extra-judicial confession, which under the law, is not sufficient to sustain a conviction. It is true, as claimed by appellant, that one cannot be convicted on his extra-judicial confession alone, but where the facts and circumstances are proven which show that an offense was committed or which, taken in connection with the confession, establish the corpus delicti, and the confession connects appellant with the commission of the offense, the evidence will ordinarily be deemed sufficient to sustain the conviction. See Black v. State, 137 Tex.Cr.R. 173, 128 S.W.2d 406, and cases there cited.

In the present case, we have evidence that Mrs. Brown missed 9 white-faced steer and heifer yearlings from her feed pen on or about the 14th day of February. Appellant's brother sold 12 head of cattle at Lubbock, 8 of which were sold to some cattle company at Cedar Rapids, Iowa. Charley Brown went to Cedar Rapids and found 5 white-faced steer yearlings bearing the same brand and otherwise corresponding with the description of the cattle which Mrs. Brown missed and which he identified as belonging to his mother. This, when taken in connection with appellant's confession, is deemed sufficient to show the commission of the offense of theft and appellant's connection therewith. Appellant cites us to the case of Zepeda v. State, 139 Tex.Cr.R. 258, 139 S.W.2d 820, as sustaining his contention. An examination of the opinion in that case will disclose that we held the evidence failed to establish the corpus delicti and for that reason the judgment of conviction was reversed. The same is true in the case of Johnson v. State, 117 Tex.Cr.R. 103, 36 S.W.2d 748.

In the case of West v. State, 116 Tex. Cr.R. 468, 34 S.W.2d 253, the facts and circumstances proven established the corpus delicti. However, the facts and circumstances proven in that case are not as certain and conclusive as those proven in the instant case, which are supplemented by the confession of the appellant.

The case of Price v. State, 136 Tex.Cr. R. 357, 125 S.W.2d 574, cited by appellant is readily distinguishable from the instant case on the facts. In that case a Hereford bull yearling disappeared from Perry Taylor's pasture and was later seen in the pasture of Mr. Coffee with other cattle including a...