Hughitt v. State

• Decision Date: 15 March 1933
• Docket Number: No. 15610.,15610.
• Citation: 58 S.W.2d 509
• Parties: HUGHITT v. STATE.
• Court: Texas Court of Criminal Appeals

58 S.W.2d 509

HUGHITT v. STATE.

No. 15610.

Court of Criminal Appeals of Texas.

March 15, 1933.

Commissioners' Decision.

Appeal from District Court, Mills County; Few Brewster, Judge.

J. O. Hughitt was convicted of the theft of a turkey, and he appeals.

Judgment reversed, and the cause remanded.

Early & Johnson, of Brownwood, for appellant.

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

CALHOUN, Judge.

Theft of a turkey is the offense; punishment, a fine of $50.

It seems from the evidence that on or about October 20, 1931, the appellant sold some fourteen or fifteen turkeys to a produce house in the city of Fort Worth. It further appears from the testimony that the sheriff of Mills county had gone to Fort Worth and brought back one of the turkeys appellant sold to the produce house and returned the same to T. E. Brown, the prosecuting witness. Brown testified that the turkey appellant was charged with taking was marked on the end of the outside toe of the left foot. As to other identifying marks on his turkeys, he testified that the tails of his turkeys had been clipped off and red paint placed on the right wings, but at the time said turkey was returned to him the red paint was worn off but could be seen up under the wing.

It appears from the testimony that the appellant lived about 2¼ miles from the complaining witness, and he and several other witnesses raised turkeys which were running on the range. Appellant testified that he was 86 years of age and that the turkey claimed by the prosecuting witness belonged to him (the appellant). He further testified that his turkeys had been originally marked in the same manner as those of the prosecuting witness, and although he had changed the mark on some of his turkeys upon the advice of one John Ivey, he had not been able to get all of his turkeys marked in the new mark. He admitted going to Fort Worth on the night in question and before he went he had requested Jess Harriss, his nephew, to catch some of his turkeys so that he could take them with him to Fort Worth, and the turkeys caught by his nephew were at his house and had been roosting there all the time.

Appellant's testimony as to changing his mark was corroborated by the witness John Ivey, and as to catching the turkeys at his place and that they had been roosting there at night for some time, he was corroborated by his nephew and his nephew's wife, who were living with him and who went to Fort Worth with him to sell the turkeys.

It is shown by appellant's bill of exception No. 1 that while the witness T. E. Brown, who claimed to have lost the turkey for which the appellant was indicted, was testifying as a witness in behalf of the state, the state, among other things, proved the following by him, to wit, that he had lost somewhere around twelve or thirteen turkeys and the same were taken from his possession without his consent. This testimony was objected to by the appellant at the time for the reason that the same was inflammatory and prejudicial to the defendant, he being only charged with the theft of one turkey and not twelve or thirteen, and for the further reasons that the testimony was not binding upon the appellant and could not solve any issue in the case, and the same was calculated to arouse the jury against defendant and might lead the jury to believe...