Lunsford v. State

• Decision Date: 06 December 1916
• Docket Number: (No. 4302.)
• Citation: 190 S.W. 157
• Parties: LUNSFORD v. STATE.
• Court: Texas Court of Criminal Appeals

190 S.W. 157

LUNSFORD v. STATE.

(No. 4302.)

Court of Criminal Appeals of Texas.

December 6, 1916.

Appeal from Johnson County Court; B. Jay Jackson, Judge.

Jess Lunsford was convicted of larceny, and he appeals. Reversed and remanded.

W. B. Featherston and W. E. Myres, both of Cleburne, for appellant. C. C. McDonald, Asst. Atty. Gen., for the State.

PRENDERGAST, P. J.

Appellant was convicted for stealing some seed cotton.

The evidence was wholly circumstantial and was ample to sustain the conviction. Hence appellant's charge to peremptorily acquit was correctly refused.

The pleadings alleged that the cotton was stolen from "Dad" McKeg, and that he was the owner, etc. He testified that his initials were "J. D." and that his name was spelled "McCaig," but that he was known and called as alleged in the pleadings and that his name was often spelled "McKeg" instead of "McCaig." The names were idem sonans. 2 Vernon's C. C. P. p. 203. Again, the universal rule in this state is that, if the injured party was generally known by the name alleged, it is immaterial what the true name was; and, if the injured party is known by one name as well as another, it is immaterial which is his true name; and, in either event, there is no variance. White's An. C. C. P., § 340; 1 Branch's An. P. C. p. 238.

That Dud Sanders testified, in describing the locations, what road or route he would travel in going to Ft. Worth, presents no error. This witness could also properly testify as to the letters he found on the shoulder strap of the sack in which the cotton was contained, and he could also testify that he tried to find out by inquiry where the cotton came from, and that he made observations on the ground, which consisted of his telling about the cotton, the tracks of two persons around about it, and that he found where an automobile had stopped and leaked oil, or oil was there found, upon the ground, and such like testimony. He was not permitted to testify what he learned by making inquiry. Perhaps his testimony that he learned later whose sack it was by making inquiry since then might not be admissible, but that alone would not present reversible error.

The county attorney testified that he took a pair of Clifford Morgan's shoes and a pair of appellant's out with him where this cotton was found, and that appellant's shoes were tennis shoes. He further testified about finding tracks of persons there and fitting these shoes in them. This testimony was all properly admissible. He then further testified that appellant told him that his shoes which he had thus taken out were the shoes he had on on the Sunday night in question, which was the night of the theft. What he testified appellant thus told him was objected to by appellant. The bill does not disclose enough for us to determine whether this testimony was admissible or not. The county attorney had further stated that appellant was not in jail nor under arrest at the time he made the statement, but that he was in the county attorney's office before a court of inquiry at the time. Whether he gave this testimony before the court of inquiry or made the statement personally to the county attorney at the time is not disclosed; nor is it disclosed whether, if before the court of inquiry, he had been duly warned. We therefore cannot tell whether this testimony was admissible or not. If it was made in appellant's testimony before the court of inquiry, it would be inadmissible if it was done under such circumstances as is covered by the decision in Simmons v. State, 184 S. W. 226, and cases there cited. If he was properly warned, then it would be admissible. If it was a personal statement to the...