Otts v. State, 20558.

• Citation: 133 S.W.2d 970
• Decision Date: 08 November 1939
• Docket Number: No. 20558.,20558.
• Parties: OTTS v. STATE
• Court: Court of Appeals of Texas. Court of Criminal Appeals of Texas

133 S.W.2d 970

OTTS v. STATE

No. 20558.

Court of Criminal Appeals of Texas.

November 8, 1939.

Rehearing Denied December 20, 1939.

Commissioners' Decision.

Appeal from District Court, Stephens County; B. H. Atchison, Judge.

Bill Otts was convicted of the theft of cattle and he appeals.

Affirmed.

Floyd Jones, of Breckenridge, for appellant.

Lloyd W. Davidson, State's Atty., of Austin, for the State.

KRUEGER, Judge.

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

This is the second appeal in this case. The opinion rendered on the first appeal is reported in 135 Tex.Cr.R. 28, 116 S.W.2d 1084, 116 A.L.R. 1454. Appellant insists that the evidence is insufficient to justify and sustain his conviction. This record shows that on the morning of May 13, 1937, S. P. Robertson and his son, Truman, discovered a fresh beef hide hidden under a bridge which crossed Hubbard Creek in Stephens County. Upon examining it, they found a mark and brand on it which they recognized as that of Alfred Donnell. Mr. Donnell went to the place, found the hide with his mark and brand thereon and took charge of the same. Joe Ellis testified that about 3 or 4 A. M. on May 13, Amos Otts awakened him and offered to sell him some fresh beef. Ellis purchased a hindquarter from Amos for $4. On the following morning his wife cut a piece off the hindquarter and Ellis stored the remainder at McElroy's Ice House in Breckenridge. Before noon on the same day, appellant and his brother stored some fresh beef, including a hindquarter, at McElroy's. The sheriff, a deputy, the chief of police and Mr. Donnell testified that the hide which was found fitted the beef in storage, this being determined by the fact that the party or parties who committed the offense had left chunks of meat on the hide, which fitted into the cavities on the beef which had been put in storage. During the trial, the state offered a part of appellant's purported confession in which he stated that he and his brother took the beef to Breckenridge and stored it. That he and his brother did not sell any beef on May 13 and had sold none for a year or more prior thereto. Appellant then offered the remainder of the confession to the effect that he and his brother had met an unknown man, a stranger, on the road on the evening of the day of the alleged theft who offered to sell them some fresh meat. That they bought one hindquarter from him for $4 which they stored at McElroy's Ice House. This was the only testimony offered by him raising an affirmative defense. The state also introduced testimony that appellant and his brother appeared at the Alexander Ice House on May 13 and offered to store 275 pounds of fresh beef; that when he went back to make out the ticket the parties left. It will be observed from an analysis of the evidence that the state showed that appellant's brother sold one hindquarter of beef to Mr. Ellis about 4 A. M. and that appellant and Amos offered to store 275 pounds of fresh beef at Alexander's Ice House the next morning. If this testimony were true, appellant's statement that they bought only one hindquarter from a stranger would leave unexplained the possession of a great deal of meat which they proposed to store. The beef, or at least a part of the beef which they did store at McElroy's Ice House, was identified as part of the meat from the stolen animal. A careful examination of the evidence has convinced us that it is sufficient to support the jury's conclusion of the appellant...