McAllister v. State

• Decision Date: 12 May 1909
• Parties: McALLISTER et al. v. STATE.
• Court: Texas Court of Criminal Appeals

120 S.W. 420

McALLISTER et al. v. STATE.

Court of Criminal Appeals of Texas.

May 12, 1909.

Rehearing Denied June 9, 1909.

Appeal from District Court, Montague County; Clem B. Potter, Judge.

Charley McAllister and another were convicted of theft, and they appeal. Affirmed.

George S. March, for appellants. F. J. McCord, Asst. Atty. Gen., for the State.

RAMSEY, J.

The appellants were tried together, without objection, in the district court of Montague county, and were on February 3, 1909, found guilty of theft of property over the value of $50, and their punishment assessed at confinement in the penitentiary for a period of five years. They were charged with stealing two bales of cotton, the property of one J. K. Bruce, from his possession and that of McNabb, Winder & Hunt, a partnership composed of the three persons named, whose initials were given in the indictment.

1. The theft was clearly shown by the state's testimony, and the taking is in express terms admitted by both appellants. They sought, as we understand, by their testimony to show that the property was taken at different times, or under circumstances that would constitute the taking of the two bales of cotton separate offenses. On this subject McAllister testifies as follows: "We took my wagon some time after midnight, and went down to the gin, and stopped it just in the lane near the south corner of the gin lot, where there is a low place with a high bank, and went over in the gin lot, some 30 to 40 yards from the wagon, and got a bale of cotton, rolled it over the fence and down to the wagon, and rolled it in. After we got the bale in, I told Bud that I would like to have a bale, also. Bud told me that we had better go, and we stayed there and argued about the matter for some time. I wanted a bale, too. The wagon was in a by street behind the yard, and we left it there, and slipped through the yard to see if any one was looking, and everything quiet. We took another bale, and rolled it over the fence just like we did the first one, and rolled it down to the wagon, and put it in; and then we went up in town. We might have been there about the gin yard an hour to an hour and a half. I do not know just how long we were there." Bud Walser, the other appellant, testified as follows: "As I passed by the gin that evening, going to Bowie, I decided that I would come down to the gin yard that night and get a bale of cotton. I told Charley McAllister about it, and asked him to take his wagon and go with me. He agreed to do so, and that night, some time after midnight, we went down to the gin yard, and stopped the wagon near the south corner of the yard, and got over the fence, and went up the fence some piece, and rolled a bale over the fence and down on the bermuda grass to the wagon, and rolled it in. Then Charley wanted to get another bale, and I told him not to do it; that we might get caught. We talked about the matter there in the road for some bit,...