Jones v. State

• Decision Date: 27 October 1909
• Citation: 122 S.W. 31
• Parties: JONES v. STATE.
• Court: Texas Court of Criminal Appeals

122 S.W. 31

JONES v. STATE.

Court of Criminal Appeals of Texas.

October 27, 1909.

Appeal from District Court, Liberty County; L. B. Hightower, Judge.

Henry Jones was convicted of cattle theft, and appeals. Reversed and remanded.

Stevens & Pickett, for appellant. F. J. McCord, Asst. Atty. Gen., for the State.

DAVIDSON, P. J.

Appellant was convicted of cattle theft. The alleged owner was named Swayne. The evidence is rather voluminous in minor details. The case is one purely of circumstantial evidence.

A witness named Holts testified: That on the evening of the 3d of July, 1907, he was on horseback, and passed where Ran Jones, son of appellant, and Miles Dark, grandson of appellant, were standing by their horses, and one of them had a rope in his hand. That he passed by without speaking to Ran, but Ran spoke to him. That about 50 or 60 yards from where the two were standing was a considerable bunch of cattle, about 30 or 40 in number. In this bunch was one belonging to Swayne, a red two year old heifer. This animal gave appearance of having been chased or run. Witness rode out to where the animal was, and identified it as Swayne's. That about that time Ran Jones rode away, and the witness saw nothing more of him. That witness and Miles Dark, the little grandson of appellant, rode away together. So far as this witness is concerned, there is nothing shown as to what became of Ran Jones or Miles Dark, except as stated. Miles Dark lived with appellant, and seems to have been raised by him up to that time, at which time he seems to have been something like 12 or 14 years of age. The evidence shows that Ran Jones lived in the town of Liberty, and appellant something like 2½ miles northeast of Liberty. This was late in the evening of the 3d of July. Ran Jones was seen by another witness later that evening, perhaps along about dusk, riding towards the town of Liberty, where he lived. The cattle mentioned were about 300 or 400 yards from the house of appellant at the time witness Holts saw them, and Ran Jones and Miles Dark near them.

Sam Holloman testified that he lived in the same neighborhood in which the appellant lived, and beyond him from the town of Liberty; that early on the morning of the 4th of July he was going to town, and passed appellant's house, and in appellant's lot he saw a little heifer yearling, which he ultimately describes as being about two years of age as he thought. He says the animal had its head towards him, but he knew it was a heifer, and in answer to a question stated he knew because he could see clear through it. He gives no other description of the animal than that, and places no brand upon it or marks on its ears. It might be well enough to state in this connection that appellant was the owner of cattle. After passing beyond appellant's house, this witness Holloman met Ran Jones going in the direction of his father's, and asked him if he saw a little yearling at his father's, and, being answered in the affirmative, stated that he was going to butcher it.

An officer named Thornton, a constable, testified that on the 4th of July, in company with the sheriff, Cherry, he went to appellant's home, armed with a search warrant, and searched his premises; that he found a number of tracks in the lot, which he followed out of the lot gate into and through the field in three separate trails; that these trails were tracked to a log in a cypress brake, and off the log into the brake some 75 yards to a tree, in which he found concealed three sacks of meat. The following day he returned, and found another sack of meat about 50 yards from where he had discovered the meat the previous day in the tree. He could not tell the size of the shoe tracks, but said they were 7's, 8's, 9's, or 10's; but he did not measure them, nor could he say they were three separate sizes; nor did he pay any attention to what kind or character of shoes made the tracks, nor did he fit the feet of appellant, Ran and Ike Jones into these tracks, and regretted that he did not do so. He carried these three parties with him, trailing the tracks out to where the discovered the three sacks of meat in the tree; nor would he swear that the tracks were not made by the same person. He also testifies that the same party who made the track he followed on the second day could have made the three tracks he found the previous day. His statement is this: "The man that made the track out to the fourth sack, so far as I know, could have made those three I found the first day. As to it being probably the same person and the same shoe, probably he could have made it." This witness disclosed expertness in tracing tracks. It is further disclosed by this witness that what he terms the "brake" was a muddy, boggy place of soft ground, and that in passing over it his feet would go deep into the mud and over the top of his laced boots. He also states that he did not notice whether appellant and his two sons, Ran and Ike, had any mud on their shoes or clothing, that they assisted him in tracing these tracks, and that he made them carry the three sacks of meat away from the tree where they were discovered. He also states that he saw no evidence of where a beef had been butchered about appellant's premises anywhere, except that in what he calls a "little hog pen" he saw some blue flies about some weeds, as if they scented or smelled something. These weeds had not been disturbed or mashed down. It may be stated from the evidence that appellant has a lot in which he kept his milch cows, horses, and a mule. Ike Jones, a son of appellant, milked the cows. There was a continued and very close search made for a place where the animal was butchered, as well as to discover the hide, which search proved fruitless. There was no blood, offal, or other evidence of a beef having been butchered in the lot or about appellant's premises. The above in substance is a fair statement of this witness' testimony.

The appellant introduced evidence to the effect that he had nothing to do with the killing of any animal, and that it was not killed at his place. Several witnesses were introduced to this effect. Ike Jones, appellant's son, testified for the appellant; it having been shown that he had been acquitted on a charge of theft of the animal. His evidence was in substance that there was no animal of any sort butchered at the place, and he knew nothing about the meat, or how it got to the tree, and that his father and brother Ran did not participate in the killing of any animal about the premises, and in fact had nothing to do with the killing of any animal, on the 4th of July. A woman by the name of Burnett, who was living at the home of appellant, testified in substance as did Ike Jones. All the witnesses for the state and defendant testifying on this point state that this witness was there, and was ironing on the morning of the 4th of July, and had a considerable fire in the yard, where she heated her smoothing irons. The state shows that appellant had a very small quantity of cooked beef in his safe or on a shelf, as well as a small quantity of cooked liver. This was a small amount. Some of the meat and liver, from the testimony of appellant's witnesses, had been eaten....