Kemball v. State

• Decision Date: 24 February 1897
• Citation: 39 S.W. 297
• Parties: KEMBALL v. STATE.
• Court: Texas Court of Criminal Appeals

39 S.W. 297

KEMBALL v. STATE.

Court of Criminal Appeals of Texas.

February 24, 1897.

Appeal from district court, Dallas county; Charles F. Clint, Judge.

Eli Kemball was convicted of cattle stealing, and appeals. Reversed.

Miller & Williams, for appellant. Mann Trice, for the State.

DAVIDSON, J.

Appellant was convicted of cattle theft under the first count in the indictment, and given two years in the penitentiary. The indictment contains three counts; the first charging theft of property from R. A. Williams, who was then and there holding it for Pete Cameron, the real owner. The second count charges theft of the cow from Pete Cameron. The third count charges receiving and concealing stolen property, knowing it to have been stolen. The court submitted only the first count to the jury, ignoring the other two. The state's case, under the facts, in substance is as follows: That defendant came to one Carter, a live-stock commission broker in the city of Dallas, and informed him of the fact that he had a cow or heifer which he desired Carter to sell for him; that the cow belonged to a woman, for whom he was selling it; that the woman was separated from her husband, and desired defendant to sell this animal for her. Carter negotiated a trade with Gillespie for the sale of the animal, and the defendant consummated the sale to Gillespie, receiving $9.25 in payment. Gillespie swears that the defendant told him at the time of the sale of the animal that it was the property of him, the defendant. It will be seen, then, that the state relied for a conviction upon the fact that the defendant had possession and disposed of the animal, supplemented by the contradictory statements with regard to that possession as shown by the witnesses Carter and Gillespie. The defendant testified in his own behalf that he, as agent of Mrs. R. A. Williams, from whom he received the cow, brought the cow to town, secured the services of Carter to make the sale, and afterwards sold her to Gillespie. He also testified that Mrs. Williams gave as a reason for securing his services to sell the animal that her husband would not furnish her with clothing, and she desired to sell this animal in order to obtain necessary clothing for her person. He denied claiming ownership in the animal at all times, as well as in his conversation with Gillespie. The state, in rebuttal, proved by Mrs. R. A. Williams that she did not authorize the defendant to sell the animal, and gave him no authority to do it, never had any conversation with him about it, and knew nothing of the transaction. The evidence also shows that the animal was the property of Pete Cameron, the alleged owner, but was in the possession of R. A. Williams, the husband of Mrs. R. A. Williams; and there is some...