Fletcher v. State, 20306.

• Decision Date: 29 March 1939
• Docket Number: No. 20306.,20306.
• Parties: FLETCHER v. STATE.
• Court: Texas Court of Criminal Appeals

128 S.W.2d 404

FLETCHER v. STATE.

No. 20306.

Court of Criminal Appeals of Texas.

March 29, 1939.

Rehearing Denied May 31, 1939.

Commissioners' Decision.

Appeal from District Court, Terry County; Louis B. Reed, Judge.

L. N. Fletcher was convicted of theft of one cow, and he appeals.

Affirmed.

T. L. Price, of Post, for appellant.

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

KRUEGER, Judge.

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

Appellant's main contention is that the evidence is insufficient to sustain his conviction. The record shows that on or about the 23 or 24th day of June, 1937, A. J. Bell missed a two year old Jersey cow from his pasture located in Terry County. About three months later, he found the cow in the possession of J. H. Fisher. At the time he saw the cow in Mr. Fisher's pasture, he identified her by her color, peculiar mouth, slipped horn and the swallow-fork in one ear. Thereafter the sheriff took Mr. Bell's eleven year old son to Mr. Fisher's place and this boy picked out the cow from a herd of 65 or 70 cows. The cow was then taken back to Mr. Bell's place and turned into the pasture, where her six or seven months old calf followed her and attempted to suck. Mr. Fisher being satisfied that the cow belonged to Mr. Bell, surrendered her to him. Fisher testified that he purchased the cow from J. H. Howell in the month of July. Howell testified that he purchased a two year old cow from appellant at the Lawson Trading Barn in Lubbock on the 26th day of June, 1937. That he kept the cow about two weeks and then sold her to Mr. J. H. Fisher. That the cow which he purchased was a two year old Jersey. That she had had a calf. That one of her horns was slipped and appeared to be rough and wrinkled, and she had a peculiar mouth. Neither Mr. Howell or Mr. Fisher noticed any ear marks on the cow. The sheriff, in his effort to ascertain who had committed the offense, asked the appellant where and from whom he had obtained the cow in question. Appellant told him that he had purchased her from a Mr. J. L. Sims in the southern part of Terry County. Mr. Sims denied having sold any cow to him. Appellant did not testify but offered a number of witnesses by whom he proved that he was engaged in buying and selling cattle. That on the 24th day of June, he unloaded a Jersey cow out of another man's truck into his truck. The witnesses did not know who this other man was. Appellant's son testified that on the morning of June 24, his father purchased a young Jersey cow from a man who had her in a Dodge pick up. This man said his name was Sims. That he and his father carried the cow to Lubbock and sold her to Mr. Howell.

Appellant contends that the evidence as herein recited is not sufficient to sustain his conviction, and in support of his contention he cites us to the case of Price v. State, 125 S.W.2d 574, decided by this court on the 1st day of this month (March) but not yet reported [in State report]. That case is readily distinguishable from the present case on the facts. In that case it was not shown that Price was ever in possession of the alleged stolen animal, or that he claimed ownership or exercised any control over it.

Here the stolen animal is traced into the possession of appellant and he disposed of it within a day or two after the owner missed it from his pasture. His explanation of the possession of the recently stolen animal was shown to be untrue. According to the son's testimony, the usual stranger and unknown man appeared in the town of Seagraves with a stolen cow, sold her to appellant, then disappeared and was never heard of again. We think the evidence justified the jury's conclusion of appellant's guilt. See Blankenship v. State, 5 Tex.App. 218.

Appellant insists that the trial court committed fundamental error in charging the jury that they could assess his punishment at from two to four years, while the present statute, as amended by the 45th Legis., Acts 1937, H.B. No. 116, C. 211, Sec. 1, Vernon's Ann.P.C. art. 1441, prescribes punishment at from two to ten years. This court has uniformly held since the decision in Leal v. State, 46 Tex. Cr.R. 334, 81 S.W. 961, that such a charge is not reversible error. See, also, Lovejoy v. State, 40 Tex.Cr.R. 89, 48 S.W. 520. No objection was made and no exception taken to the charge in the court below. Furthermore such a charge was, in effect, beneficial to appellant, since the jury could not have assessed his punishment at more than four years, whereas if the court instructed the jury relative to the penalty as prescribed by the amendment, his punishment might have been confinement for ten years. The charge...