Flippin v. State

• Decision Date: 15 December 1937
• Docket Number: No. 19348.,19348.
• Citation: 115 S.W.2d 665
• Parties: FLIPPIN v. STATE.
• Court: Texas Court of Criminal Appeals

115 S.W.2d 665

FLIPPIN v.STATE.

No. 19348.

Court of Criminal Appeals of Texas.

December 15, 1937.

Rehearing Granted March 9, 1938.

State's Rehearing Denied April 20, 1938.

Commissioners' Decision.

Appeal from District Court, Terry County; Gordon B. McGuire, Judge.

E. L. Flippin was convicted of theft, and he appeals.

Reversed and remanded.

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

Truett Smith, Dist. Atty., of Tahoka, and Lloyd W. Davidson, State's Atty., of Austin, for the State.

KRUEGER, Judge.

Appellant was convicted of the offense of theft of property over the value of $50, and his punishment was assessed at confinement in the state penitentiary for a term of two years.

Appellant's first and main contention is that the evidence is insufficient to justify and sustain his conviction, inasmuch as the seed, the alleged stolen property, were not identified as the seed that were stolen from Mr. Forbess.

It is true that the State relied entirely upon circumstantial evidence for a conviction, but we think that the circumstances proved are sufficient to connect the appellant with the offense.

In order that the basis for our conclusion may clearly appear from this opinion, we deem it necessary to briefly state the salient facts proved at the trial.During the night of April 16, 1935, some parties stole thirty-five sacks of recleaned Sudan seed from C. M. Forbess of Terry county.The parties who committed the offense drove a truck with dual wheels to a place within 250 yards of where the seed were located, and then carried them to the truck.The tracks made by the truck indicated that all the tires, with the exception of one, were worn slick in the center.Appellant owned a Chevrolet truck with dual wheels, carrying tires which made a track similar to that found on Forbess' premises where the seed had been loaded.The seed were in oil mill meal sacks.On the forenoon of the 18th day of April, appellant and Gene Vicks sold thirty-five sacks of recleaned Sudan seed to the Fort Worth Elevator & Warehouse Company, Fort Worth, Tex., for the sum of $282.28.Said seed were in oil mill meal sacks.Appellant sold the seed under the assumed name of J. W. Waters.A short time prior to the commission of the theft, appellant had his truck painted a black color, but a few days after the commission of said offense, Gene Vick painted said truck a white color.It was also shown that after the offense was committed, appellant disappeared from the community for several days.The check which was issued to him in payment of said seed was indorsed as follows: "J. W. Waters, Colo. City."

It is apparent from the foregoing statement of the facts that the seed taken from Forbess were recleaned seed, and were in oil mill meal sacks; that the amount taken was thirty-five sacks, containing approximately 100 pounds per sack.The seed which appellant sold under an assumed name were recleaned seed of the same kind, in similar sacks, and were about the same quantity as taken from Forbess.

We think that these circumstances are sufficient to establish the identity of the seed sold by the appellant as the seed taken from Mr. Forbess.Other facts proved, including the painting of the truck after the theft, the tracks made by the truck at the place where the offense was committed, the sale of the seed by appellant, and appellant's disappearance from home, add force and strength to the circumstances which connect him with the commission of the offense.

Appellant next complains of the court's charge.We have examined the same in the light of the objections addressed thereto, but find ourselves unable to agree with him that it is subject to the criticism addressed thereto, in view of the holding of this court in Hankins v. State, 39 Tex.Cr.R. 261, 45 S.W. 809, where a similar question to the one here presented was decided adversely to appellant's contention.

By bill of exception No. one, appellant complains of the testimony given by B. F. Reed, the person who purchased the Sudan seed from appellant, to the effect that the check in the sum of $282.28, given in payment for the seed, payable to J. W. Waters, was written by Mr. George C. Ingraham, secretary and treasurer of the Fort Worth Elevator & Warehouse Company.The objection urged thereto by appellant was that Mr. Ingraham, himself, would be the...