Compton v. State, 23066.

• Decision Date: 14 March 1945
• Docket Number: No. 23066.,23066.
• Parties: COMPTON v. STATE
• Court: Texas Court of Criminal Appeals

186 S.W.2d 74

COMPTON v. STATE

No. 23066.

Court of Criminal Appeals of Texas.

March 14, 1945.

Commissioners' Decision.

Appeal from District Court, Knox County; Lewis M. Williams, Judge.

Bob Compton was convicted of cattle theft, and he appeals.

Judgment affirmed.

D. J. Brookreson, of Benjamin, John Davenport, of Wichita Falls, and James A. Stephens, of Benjamin, for appellant.

Ernest S. Goens, State's Atty., of Austin, for the State.

KRUEGER, Judge.

The offense is theft of one cattle. The punishment assessed is confinement in the state penitentiary for a term of four years.

This case is one of circumstantial evidence. Appellant questions the sufficiency thereof to sustain his conviction. The record reflects that L. B. Smith was the manager of the ranch belonging to Furd Halsell and son and was in charge of all the cattle and live stock thereon; that appellant was in possession of the Kilworth Ranch under and by virtue of a lease; that the latter ranch joined the former on the west. On the 5th day of July, 1944, while Smith was riding over the ranch looking after the cattle he noticed some horse tracks which had some peculiarities about them. One of the tracks disclosed that the horse which made it had a piece broken out of its left forefoot and the other track showed that the horse which made it had a piece broken out of the middle of its left forefoot. Smith also noticed some tracks which had been made by a cow and calf. He followed these tracks and found where a calf had gone through a barbed-wire fence into the appellant's pasture. Smith then entered that pasture and found two of Halsell's cows therein. Thereupon he went to Crowell and informed the sheriff of what he had found. The sheriff called the Rangers at Lubbock, who went immediately to the Halsell ranch, where they spent the night. Early the next morning, accompanied by Smith, they entered the appellant's pasture and found twenty-two dead cows with their ears cut off. The brand on the body of each cow had been cut out. However, there were two or three cows from which the brand had not been eliminated and they bore Halsell's brand. They also found one cow which Smith identified as belonging to Halsell by reason of a slipped off horn. It further appears from the record that on the afternoon of July 4th appellant loaded some unbranded calves in a truck and carried them to Fort Worth, where he sold them. The dead cows showed that they had been nursing calves and these calves were missing. The cow with the slipped horn was identified by Smith as belonging to Halsell. There was evidence that the dead cows had been knocked in the head with what appeared to have been a hammer or some such instrument. The calves which appellant carried to Fort Worth and sold were nineteen in number but were not identified as belonging to Halsell except by circumstances that the cows that were dead in appellant's pasture appeared to have had sucking calves which were not found either in the appellant's pasture or in that of Halsell or elsewhere.

On the 6th or 7th of July, the Rangers and the sheriff of Knox County, as well as the sheriffs of the adjoining counties, searched a well on the appellant's ranch near his home and discovered therein the head of a calf from which the ears had been cut. They also found intestines of an animal therein. In searching the barn and saddle shop they found a hammer which they carried out into the pasture and fitted it into the holes in the head of the dead cows and it fit perfectly. They also examined the appellant's horses and discovered that one bay horse had a piece broken out of the left side of his forefoot and a dun horse which had a piece broken out of the middle of his forefoot. The officers made plaster of Paris casts of the tracks found in the pasture showing the peculiarities of the horses' hoofs, and these were introduced in evidence.

The foregoing brief statement of the salient facts proven on the trial which, in the absence of any explanation of how the dead cows with the brands cut out and otherwise mutilated bodies came to be in appellant's pasture, is, in our opinion, sufficient to sustain the jury's conclusion of his guilt.

Appellant complains of the testimony given by various State's witnesses relative to the finding of dead cows in his pasture other than the one charged to have been stolen; that all of the cows appeared to have been killed by being struck in the head with a hammer or an instrument of like character. He objected to this testimony on the ground that it showed an extraneous offense. The objection was overruled on the theory that it showed system, intent and motive. The dead cows found in the appellant's pasture, according to the facts in this case, were all taken about the same time, from the same owner and from the same ranch with the exception of four or five of them. We think this evidence was admissible as tending to prove identity in developing the res gestae and in making out the guilt of the defendant by a chain of circumstances connected with the offense for which he was on trial. In support of the conclusion here expressed, we refer to the following cases: Satterwhite v. State, 6 Tex.App. 609; Thompson v. State, 42 Tex.Cr.R. 140, 57 S.W. 805; Watters v. State, Tex.Civ.App., 94 S.W. 1038; Bonners v. State, Tex.Cr. App., 35 S.W. 650; Jones v. State, 14 Tex. App. 85; Mueller v. State, 85 Tex.Cr.R. 346, 215 S.W. 93.

Appellant contends, however, that the cases of Mueller v. State, supra, and Garcia v. State, 108 Tex.Cr.R. 245, 299 S.W. 909, are not applicable here, because in those cases the accused made an explanation of his possession of the property in question, while in the instant case, no explanation was made or offered. It will be noted that in the present case the State relied entirely upon circumstantial evidence to establish its cases against the appellant. Therefore, every fact which may throw any light on any issue in the case, or which may form a link in the chain of circumstances which tends to connect the accused with the offense charged, would be admissible. In Branch's Ann. Tex.P.C., p. 1285, section 2347, the rule is...