Davidson v. State, 16214.

• Decision Date: 31 January 1934
• Docket Number: No. 16214.,16214.
• Citation: 69 S.W.2d 97
• Parties: DAVIDSON v. STATE.
• Court: Texas Court of Criminal Appeals

69 S.W.2d 97

DAVIDSON v. STATE.

No. 16214.

Court of Criminal Appeals of Texas.

January 31, 1934.

Rehearing Denied March 14, 1934.

Commissioners' Decision.

Appeal from District Court, Stonewall County; Clyde Grissom, Judge.

Burl Davidson was convicted of cattle theft, and he appeals.

Affirmed.

Wiley L. Caffey, of Abilene, for appellant.

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

CHRISTIAN, Judge.

The offense is theft of cattle; the punishment, confinement in the penitentiary for two years.

R. M. Waggoner owned a ranch in Stonewall county on which he had about four hundred head of cattle. Travis Parnell looked after the cattle. He testified that the animals alleged to have been stolen were last seen by him in September, 1932. In the latter part of October, 1932, the sheriff found four head of cattle in the pasture of J. M. Golston. These cattle had been freshly branded over some old brands. On making an inspection of the animals, Mr. Waggoner identified them as his property. It appears that the old brands belonged to Mr. Waggoner. Mr. Golston testified that appellant had stayed at his place from time to time, but had left some time in August, 1932, for the purpose of working on a road at Guthrie. He said that, when the sheriff discovered Mr. Waggoner's cattle in his pasture, he told him that he thought they were appellant's cattle. The sheriff testified that upon finding the cattle in Mr. Golston's pasture he had a conversation with appellant concerning the ownership of the animals. He said appellant told him that they were his cattle and that he had bought them from Henry Coody of Knox City; that he had changed the brands and had taken the cattle to the Bingham pasture; that the last time he saw them they were on the river; that he had bought the cattle about the 6th of July; that he did not see them any more until they were found in the Golston pasture; that he branded the cattle some time in September. The sheriff further testified that Henry Coody died July 15, 1932.

Appellant did not testify in his own behalf. His witness Hill testified that appellant had advised him that he had an opportunity to trade for some cattle that Henry Coody had; and that he told appellant he could trade some of his stock in if he desired. The proof was further to the effect that appellant made no effort to hide the cattle during the time they were in Golston's pasture.

Appellant contends that the falsity of the explanation he made to the sheriff concerning his purchase of the cattle is not shown. We are unable to agree with this contention. It is observed that appellant stated that he bought the cattle from Coody. Coody died July 15, 1932. Further, it is observed that Travis Parnell, who took care of Mr. Waggoner's cattle, testified that the animals alleged to have been stolen were in Mr. Waggoner's pasture on September 26, 1932. He said: "I remember the 26th of September because I was rounding up cattle and doctoring screw worms, and I remember seeing these two identical cattle on the 26th of September. I do not recall ever seeing them on the ranch between that time and the time I saw them in the Golston pasture." The jury were warranted in concluding that the cattle were in Mr. Waggoner's pasture on the 26th of September, as testified to by the witness Parnell. Manifestly, the testimony mentioned directly contradicted the statement appellant made to the sheriff concerning his purchase of the cattle from Coody. There could not have been a purchase from Coody after July, 1932, as Cody died during that month. In connection with this testimony, the jury were warranted in considering appellant's action in changing the brands on the cattle. A further circumstance tending to show the falsity of appellant's explanation was the fact that he branded the cattle during the month of September, 1932, that being the month they were apparently taken from the possession of Mr. Waggoner.

Bill of exception No. 1 relates to the action of the trial judge in overruling the application for a continuance. In the qualification to the bill it is recited that at the...