Norton v. State, 22964.

• Citation: 186 S.W.2d 347
• Decision Date: 03 January 1945
• Docket Number: No. 22964.,22964.
• Parties: NORTON v. STATE.
• Court: Court of Appeals of Texas. Court of Criminal Appeals of Texas

186 S.W.2d 347

NORTON v. STATE.

No. 22964.

Court of Criminal Appeals of Texas.

January 3, 1945.

Rehearing Denied April 11, 1945.

Commissioners' Decision.

Appeal from District Court, Hardeman County; C. Y. Welch, Judge.

Edgar Norton was convicted of the theft of one cattle, and he appeals.

Affirmed.

W. T. Perkins, of Quanah, and C. C. McDonald, of Wichita Falls, for appellant.

R. R. Donaghey, Dist. Atty., of Vernon, and Ernest S. Goens, State's Atty., of Austin, for the State.

KRUEGER, Judge.

The offense is theft of one cattle. The punishment assessed is confinement in the state penitentiary for a term of two years.

Appellant challenges the sufficiency of the evidence to sustain his conviction. A careful consideration thereof leads us to an adverse conclusion. The evidence adduced by the State, briefly stated, shows that on or about the 17th or 18th day of September, 1943, Don Drake noticed that one of his Hereford cows, bearing a circle brand on her hip, was in appellant's pasture, but that her calf was not with her. He reported the matter to the officers, who began an investigation thereof. They learned that on the 16th day of said month, appellant had sold forty head of cattle through the auction ring at Vernon, Texas, including an unbranded and unmarked Hereford bull calf. They also learned that this bull calf, together with two heifers, had been sold to Les Hammond. They went to Hammond's place, found the bull calf, brought it back and put it in the corral with two cows, one of which was the Hereford cow bearing the circle brand; that as soon as the calf was placed in the corral it went to sucking the cow and she began licking the calf. Mr. Drake identified the calf as belonging to him.

The evidence further shows that after the cattle were placed in the pen at the auction ring which had been assigned to appellant, he made a list which is referred to by witnesses as the "income sheet". This sheet showed the number of cows and calves, the sex, as well as the mark and brand on each animal, together with the number that was placed on each one. The registered animals were numbered with blue chalk while the unregistered ones had a pasteboard card with a number thereon pasted on the hip. This sheet disclosed the fact that appellant had brought an unmarked and unbranded white-faced bull calf to the ring. The sales record showed that a white-faced bull calf with a paste-board card bearing No. 57 glued on its hip, was sold to Les Hammond, and when the officers found it, it still had the pasteboard tag bearing No. 57 on its hip.

Appellant, who testified in his own behalf, admitted that he carried a Hereford bull calf to the auction ring but claimed that it was marked with a swallow fork in the right ear; that subsequently two bull calves which he had sold came back to his premises; that he called the sheriff to come out and he would find that each of them was marked in the right ear. The sheriff responded to the appellant's request, but upon inspection told appellant that neither of them was the calf which he and the Rangers had recovered at Les Hammond's place; that the calf which they brought back from Hammond's premises did not have any mark or brand on it and differed in size and weight from those which appellant had shown him.

Appellant further testified that the white-faced bull calf which he sold through the auction ring on the day in question had No. 80 tatooed in its left ear and marked in the right ear with a swallow fork; that in the early part of October this calf came back to his pasture. Appellant admitted, however, that although he had, on the day in question, sold this particular animal which returned to his pasture, yet, at a subsequent day, he sold it again. This, in our opinion, was a circumstance which rebutted his contention that it was the white-faced bull calf which he had sold on the 16th day of September. If he had really sold this calf instead of the one in question, he knew that it did not at that time belong to him and that he had no legal right to sell it; that if he did so, it would most likely get him into trouble, but if it was not the calf which he had sold through the auction ring on September 16th, then he had no cause to fear or apprehend any trouble. This is a very significant fact and no doubt contributed as much as any other fact or circumstance to his conviction.

The record reflects that upon his trial appellant was represented by able counsel who, on appeal, presented to this court a most ingenuous argument upon the question of the insufficiency of the evidence, but we are not convinced that the evidence is insufficient to sustain the conviction.

Appellant addressed quite a number of objections to the court's charge and...