Davis v. State

• Decision Date: 25 October 1911
• Citation: 140 S.W. 349
• Parties: DAVIS v. STATE.
• Court: Texas Court of Criminal Appeals

140 S.W. 349

DAVIS v. STATE.

Court of Criminal Appeals of Texas.

October 25, 1911.

Appeal from Young County Court; E. W. Fry, Judge.

J. A. Davis was convicted of theft, and he appeals. Affirmed.

C. W. Johnson, for appellant. C. E. Lane, Asst. Atty. Gen., for the State.

HARPER, J.

Appellant was charged by information and complaint with theft of property under $50 in value, and upon being tried he was convicted, and his punishment assessed at 75 days imprisonment in the county jail.

The information alleged the property to be the property of John Stiffler. The proof shows that the alleged stolen property belonged to John Stiffler and Ed Stiffler, who were in partnership in the purchase of hides. Appellant insists that this is a fatal variance. Article 445 of the Code of Criminal Procedure of 1895 provides: "When the property is owned in common, or jointly, by two or more persons the ownership may be alleged to be in all or either of them." And in the case of Coates v. State, 31 Tex. Cr. R. 257, 20 S. W. 585, this court has held that, "where the indictment alleged the ownership to be in one party, and the proof showed that it belonged to a partnership, there was no variance between the allegation and the proof," under the above article of the Code. See, also, Terry v. State, 15 Tex. App. 66, and Atterberry v. State, 19 Tex. App. 401.

The evidence in this case shows that John and Ed Stiffler, on the night of the 17th of November, lost 18 hides; that one of the hides had peculiar nail marks in it, and three of them, having been kept at coal mines, were black on the inside from coal dust. About the same time, on the 18th, J. M. Davis and his partner also lost 24 hides. On the 19th, appellant carried to the express office, to be shipped to St. Louis, a package containing 46 hides, and the express agent issued him a receipt. The package was marked from J. A. Davis (defendant) to I. Abraham, St. Louis. Prior to opening the package, the prosecuting witness described four of the hides he had lost by peculiar marks that should be thereon. Upon opening the package, four of the hides were found to be identical in description to that given by the prosecuting witness, before opening the package, and this fact was admitted in evidence. After the hides had been lost and before finding them at the express office appellant had told Mr. Wallace, who was searching for the hides, that he shipped seven hides on the 18th day of November. It was proven he had shipped no hides on the 18th, but had delivered the package containing 46 hides on the 19th of November. This evidence was objected to. When the hides were found at the depot, shipped in appellant's name, he was arrested; he denied them being the hides lost by the Stifflers and Davis and Awalg, and claimed he had purchased the hides he had shipped from a man traveling through the country. He said the man was going east, and had a covered wagon and drove two horses; that he paid $7 for the hides. He also introduced evidence of his family that he was at home on Thursday and Friday nights (the nights the hides are alleged to have been stolen), and introduced proof that others had seen the wagon he described passing through, but did not claim any one saw him purchase the hides.

This is a brief statement of the evidence, and appellant's first contention is that the court erred in permitting Mr. Wallace to testify that the defendant, while he was looking for the hides, told him (Wallace) that he (defendant) had shipped seven hides on Friday. The objection to this testimony, as stated in appellant's bill, is "because the defendant did not in fact ship or deliver for shipment any hides on that date, and the only shipment made by defendant was the shipment made Saturday, containing 46 hides, and because at the time the statement was alleged to have been made the defendant was not in possession of any hides, and was not called on to make any statement about his possession; further stating that the only purpose could be to prejudice defendant before the jury on account of an inaccurate statement, and afforded a conflict between the witness and defendant." Neither of these objections are tenable. While it is true the defendant had not been charged with the theft at this time, yet Officer Wallace was at that time in search of the hides, and defendant must have known that the officer would learn that he had shipped hides, his making the statement that there were but seven in the package he had shipped, while in fact there were 46, was admissible as a circumstance in the case; the state relying wholly on circumstantial evidence to convict appellant. Any circumstance connecting appellant with the hides shipped, or misstatement in...