Butler v. State

• Decision Date: 08 May 1918
• Docket Number: (No. 5013.)
• Citation: 203 S.W. 597
• Parties: BUTLER v. STATE.
• Court: Texas Court of Criminal Appeals

203 S.W. 597

BUTLER v. STATE.

(No. 5013.)

Court of Criminal Appeals of Texas.

May 8, 1918.

Appeal from Hill County Court; R. T. Burns, Judge.

John Butler was convicted of theft, and he appeals. Reversed and remanded.

J. Webb Stollenwerck, of Hillsboro, for appellant. E. B. Hendricks, Asst. Atty. Gen., for the State.

DAVIDSON, P. J.

The indictment charges appellant with having committed theft of sugar of the value of $9 and lard of the value of $6, being the property of W. N. Baker and taken from his possession without his consent.

Mr. Baker testified he was agent of the Missouri, Kansas & Texas Railway Company at Hillsboro; that about the 1st of November he missed, at the Katy freight office in Hillsboro, six one-gallon cans of Crisco lard of the value of $9, and one sack of sugar of the value of $9, and that he never gave his consent to any one to take this property. He says he did not know who got the lard, or whether the three cans of lard exhibited to him was that which he missed. It was the same brand of lard, although, he says, there are a great many cans of that brand of lard. It is a standard brand of lard, and handled and shipped by nearly all grocery merchants. He knew of nothing peculiar about the particular cans of lard to identify them, nor did he know who got the sugar. Thompson testified that he was constable, and went to appellant's house and found in a corner behind a safe three cans of lard, the same as that exhibited — three one-gallon cans of Crisco lard — and also found some sugar with the lard. He says he never saw defendant with any lard; never saw him enter the Katy freight office, although he worked for the Hillsboro Transfer Company. He says he did not know whether the lard on exhibition was that taken from the Katy freight office or not; that defendant was not a merchant, and that it is unusual for people who run transfer wagons to sell lard; and that he recovered two cans of lard from Lem Maddox. Maddox says he got two cans of lard from appellant, for which he paid $3, and that the officer came and took the lard. Some time after this appellant was paid off by the transfer company, and witness told appellant that he (witness) was a hard-working man and needed his money, and that the officer had taken his lard from him, and he further states, after the company paid appellant what was due for back pay, appellant paid him $3. This is the case.

We are of opinion that this evidence is not sufficient to form the basis of...