Flippin v. State

Citation115 S.W.2d 665
Decision Date15 December 1937
Docket NumberNo. 19348.,19348.
CourtCourt of Appeals of Texas. Court of Criminal Appeals of Texas

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.


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...

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6 cases
  • Blevins v. State
    • United States
    • Texas Court of Appeals
    • March 29, 1984
    ...to "Montgomery Ward and Company, Incorporated," the Court found a fatal variance. The conviction was reversed. In Flippin v. State, 134 Tex.Cr.R. 352, 115 S.W.2d 665 (1937), the defendant had been convicted of theft of property of a value over $50. The defendant was charged by indictment wi......
  • Cook v. State, 45507
    • United States
    • Texas Court of Criminal Appeals
    • December 13, 1972
    ...520, 2 S.W. 859 (1887); 25A Tex. Digest, Larceny, k40(7); 1 Branch's Ann.P.C.2d § 518 at 497--499 and the case of Flippin v. State, 134 Tex.Cr.R. 352, 115 S.W.2d 665 (1937), cited and relied upon by the appellant. An allegation of 'one head of cattle' or whatever number of animals is approp......
  • Ballinger v. State
    • United States
    • Texas Court of Criminal Appeals
    • June 14, 1972
    ...that a conviction cannot be had for property not alleged to be stolen. Clark v. State, Tex.Cr.App., 215 S.W.2d 184; Flippin v. State, 134 Tex.Cr.R. 352, 115 S.W.2d 665; Garrett v. State, 87 Tex.Cr.R. 12, 218 S.W. 1064; Poston v. State, 58 Tex.Cr.R. 583, 126 S.W. 1148. It is also fundamental......
  • Jarrell v. State, 22766.
    • United States
    • Texas Court of Criminal Appeals
    • February 16, 1944
    ...cases: Early v. State, 56 Tex.Cr.R. 61, 118 S.W. 1036; Poston v. State, 58 Tex.Cr.R. 583, 126 S.W. 1148; Flippin v. State, 134 Tex.Cr.R. 352, 115 S.W.2d 665, pages 355, 667, respectively, on motion for rehearing; McMillan v. State, 128 Tex.Cr.R. 640, 83 S.W.2d 674; Coleman v. State, 21 Tex.......
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