Kellum v. State

• Decision Date: 30 January 1918
• Docket Number: (No. 4848.)
• Citation: 200 S.W. 843
• Parties: KELLUM v. STATE.
• Court: Texas Court of Criminal Appeals

200 S.W. 843

KELLUM v. STATE.

(No. 4848.)

Court of Criminal Appeals of Texas.

January 30, 1918.

Appeal from Bell County Court; M. B. Blair, Judge.

Jim Kellum was convicted for misdemeanor theft, and he appeals. Reversed, and cause remanded.

John L. Ward, Evetts & Sanderford, and N. P. Woodward, all of Temple, for appellant. E. B. Hendricks, Asst. Atty. Gen., for the State.

MORROW, J.

This is a conviction for misdemeanor theft; the allegation being that appellant stole from the possession of Chas. Irvin 75 pounds of brass.

The evidence is circumstantial. It appears that Joe Sod, a junk dealer, was found in possession of some brass by the representative of the Santa Fé Railroad, and was promised immunity from prosecution so far as the railroad representative could control it if he would help convict appellant. Sod claimed to have an appointment with appellant at 8 o'clock in the evening to obtain some brass, and, with the railroad representative, kept the appointment, and the appellant transferred from his automobile to that of Sod's a sack containing 72 pounds of brass. To identify this brass the state relied upon the testimony of Irvin, as follows:

"I am storekeeper for the Santa Fé Railway Company, and held that position on the 21st day of August, 1916, and have charge of all the old or junk brass on the Santa Fé system from Temple to Cleburne, from Temple to Bellville, and from Temple west on the branch. About the 22d day of August, 1916, I was shown some brass in Joe Sod's junkshop that was claimed by him to have been received by him from Jim Kellum. A great many pieces of this brass had the Santa Fé mark or brand on them, and showed to have belonged to the Santa Fé Railway Company, and I had every reason to believe that it was Santa Fé brass. It was in an oat sack. I do not know where this brass I saw in the junkshop came from. I could not say where it came from. It was Santa Fé brass is all I know. I saw something over 200 pounds in the shop; it was in two sacks; both sacks contained Santa Fé brass. I do not know which one came from Jim Kellum. I could not say what part of the Santa Fé System this brass came from, for it is hard for me to tell when any brass is lost; I could not swear that I ever had this brass in my possession or under my care, and do not know when it was stolen, if stolen. Jim Kellum had worked on the rip track for the Santa Fé in Temple for some two or three years previous to August 21, 1916, and his duties would necessarily require him to handle old or junk brass frequently, but I never did see him take any brass from the yards. There is a loss of about 20 per cent. each year of the old brass, for various reasons, that is never returned to the Santa Fé, the loss being from wear...