Ivey v. State

• Decision Date: 01 January 1875
• Citation: 43 Tex. 425
• Parties: JOHN IVEY v. THE STATE.
• Court: Texas Supreme Court

43 Tex. 425

JOHN IVEY

v.THE STATE.

Supreme Court of Texas.

1875.

APPEAL from Travis. Tried below before the Hon. J. P. Richardson.

Dave Ezelle and John Ivey, the defendants, were indicted for theft of a steer, the property of Elizabeth Pfluger. There was a severance, and Ivey alone was put upon trial.

The testimony showed that on the last day of July, 1873, two men, riding gray horses, were seen in the neighborhood of Pfluger's, driving a bunch of cattle in the direction of Austin. A witness pursued them about a mile, headed them, and at one time was within fifty yards. Witness recognized defendant as one of the men. Witness did not then know defendant, but recognized him next week by a bump on his face. Another witness met the same men and the cattle about two miles from Pfluger's and in the direction of Austin. This witness thought the other man was Ezelle.

The next morning Pfluger, his brother, and Adams, started to pursue the trail of the stolen cattle. They were found, and four or five identified, in a pasture rented by Ezelle, about five miles north of Austin. The Pfluger party secreted themselves near the pasture for some time, watching the cattle. During the day two men entered the pasture, rounded up the cattle, cut out about twelve, and drove them out of the pasture, and started with them towards Austin. The Pflugers followed, and when within 250 yards of the cattle, the two men left the cattle in the prairie and rode back in direction of the pasture.

The Pfluger party came to Austin, obtained process for the two men, describing them in the affidavit as unknown.

Further investigations the next morning resulted in finding some of the cattle at Ezelle's butcher yard and some at a neighboring yard, driven there and disposed of by the defendants, but sold by Ezelle.

The defendants were arrested on the 2d or 3d of August, and an examination was had before a justice of the peace. Evidence satisfactory to the justice was produced, and the defendants were released.

At the next term of Travis District Court four indictments were preferred against Ezelle and Ivey for the theft of that number of cattle in this herd, and at subsequent terms they were tried and acquitted upon three.

The defendant, Ivey, on the trial, offered in evidence a bill of sale to Ezelle for twenty-two head of cattle, among them the beef described in the indictment, of date August 1, 1873, and signed by one S. J. Cox. No one knew Cox. Several witnesses present at the transaction proved the execution of the bill of sale and described Cox, the maker. A witness, Wells, testified to buying another bunch of cattle a month earlier from a man named S. J. Cox. The bill of sale to Wells was also produced.

Three witnesses testified that Ezelle and Ivey were in Austin the evening before the beeves were bought until sundown, (the evening Pfluger saw the men on the gray horses ten miles north of Austin, half an hour before sundown, driving the stolen cattle.)

It also appeared in evidence that Ezelle was engaged in the butchering business, had two butcher stalls in Austin, and a yard one and a half miles north of the city; and that Ivey was hired by Ezelle at twenty-five dollars coin per month, and had no interest in the business.

Defendants objected to the testimony as to other beeves stolen and found in Rutherford's pasture, and after it was admitted defendants asked the witnesses (who had testified that they had been called as witnesses on the trial of defendants for the theft of the others) “what was the result of the other trials?” The court, on objection by the district attorney, excluded the question and answer.

The defendant offered the records of the court in the three other cases for theft, and the verdict and judgment in each case of acquittal. This evidence was also excluded.

The instructions sufficiently appear in the opinion.

The jury found defendant guilty, and fixed his punishment at two years in the penitentiary and “recommended him to the clemency of the court.” Judgment was rendered accordingly, and defendant appealed.

D. E. Thomas and N. G. Shelley, for appellant, filed a lengthy argument in this cause, too lengthy for insertion, of which the following gives some of the main points presented:

The bill of sale from Cox to Ezelle, on proof of its execution, is presumed to be bona fide, unless impeached by evidence of fraud. The law never presumes fraud, much less a forgery. The bill of sale being proven and read to the jury, the party assailing it for fraud must prove the fraud to the satisfaction of the jury. (Tuck. Comm., vol. 1, marg., p. 240.) This rule is of universal application. (Turner v. Lambeth, 2 Tex., 369;Tompkins v. Bennett, 3 Tex., 47;Paxton v. Boyce, 1 Tex., 317.)

The charge of the court that the burden of proof was on the defendant to prove the sale in good faith, was erroneous.

While possession of recently-stolen property is prima facie evidence of theft, yet a reasonable explanation, uncontradicted, is to be taken as true, and a reasonable explanation given by the defendant may be sufficient to throw the burden of proof on the prosecution. (Bur. Cr. Ev., 454; 1 Stark., 512, 513; Wills' Cir. Ev. 48.)

To justify the presumption of guilt from the possession of property recently stolen the possession must be actual and exclusive. The explanation uncontradicted there must be taken as true. (47 Eng. Com. L. Rep., 370; Jones v....