Polk v. State

• Decision Date: 26 October 1910
• Citation: 131 S.W. 580
• Parties: POLK v. STATE.
• Court: Texas Court of Criminal Appeals

131 S.W. 580

POLK v. STATE.

Court of Criminal Appeals of Texas.

October 26, 1910.

Appeal from District Court, Taylor County; Thomas L. Blanton, Judge.

L. J. Polk was convicted for fraudulently receiving and concealing stolen property, and he appeals. Reversed and remanded.

Woodruff & Woodruff, for appellant. John A. Mobley, Asst. Atty. Gen., for the State.

McCORD, J.

This is an appeal from a conviction for fraudulently receiving and concealing stolen property knowing the same to have been stolen; his punishment being assessed at two years' confinement in the penitentiary.

The indictment contained two counts—one charging the theft of the property, and the other fraudulently receiving and concealing same. The court submitted both counts to the jury. The case as made out by the state was circumstantial. The bill of indictment alleged the theft of cattle belonging to one Sorelle in Fisher county, Tex., and that some parties drove some 20 head of cattle from the Davis pasture in Fisher county, Tex., to Trent, in Taylor county, Tex., on the 20th and 21st days of June, 1909, and that these cattle were loaded upon cars of the Texas & Pacific Railway Company and carried to Ft. Worth, and sold in the open market. There is some testimony that the cattle sold in Ft. Worth belonged to Sorelle. The state in the trial of the case placed upon the stand one John Pursley. This witness testified that on June 20th he was at Sylvester, in Fisher county, and that on that day he saw Alvin Davis and this defendant; that Alvin Davis claimed to own the cattle, and told him to go to a pasture and get some cattle and drive them to Trent; that Baron Goode was there also, and witness says that about sundown as he was going to get the cattle he met the defendant; that Davis just told him to go and get the cattle, and did not say what kind of cattle or point out any particular cattle, but said they were his. Davis did not tell him from whom he had got the cattle; did not tell him anything about the cattle; just told the witness to go and get a bunch of cattle out in his pasture. Witness says he just told him to get a load; that he had been working for Davis before that; that he was not familiar with the cattle that were in the pasture; that he had never seen the cattle before; that he passed nobody on the way from the house at Sylvester where he lived until he got to the creek and met the defendant; that it was about a mile and a half from his father's house to the Alvin Davis pasture, and that he left home about sundown. He said that he saw the defendant on Sunday morning, but had no talk with him, and saw him no more until he came up on him down at the creek just at little after sundown; that he and the defendant went on to where the cattle were; that they had no talk whatever other than that they were talking about shipping the cattle; that there was no previous agreement that they were to meet there; that, when he first rode up to where the defendant was, defendant said, "Are you going to ship the cattle?" and witness told him "Yes"; that he had seen defendant, Goode, and Davis talking together that morning, but did not know what they were talking about; that defendant told him that he wanted to go to Ft. Worth, and, if witness would let him have his pass to go down there on, he would help witness drive the cattle to Trent; that thereupon they rounded up the cattle and started; that he saw a good many cattle in the pasture, and he says they just cut out and rounded up a few. He further testified that he knew nothing about the brands of those they cut out. Witness, continuing, said that they cut the cattle out from the other cattle and carried them into a little pasture away from the big pasture; that no one was with him except Polk, defendant, but he saw Myrick at a distance; that they carried the cattle out of the little pasture into a lane through a gate and started about dark; that neither he nor Polk ate any supper that night; that they took some 30 head of cattle; that he knew nothing about the brands of the cattle, and that he cannot describe the cattle any other way than that they were cattle; that they went on from there to Trent. He said that after they had got three or four miles out a party whom he did not know overtook them, and asked them where they were going when witness replied, "To Eskota;" that he did not tell this party that they were going to Trent; that they were in fact going to Trent because they had been instructed to go there; that he was working for Davis when he took the cattle; that Davis instructed him to ship the cattle to the Lee Live Stock Commission Company at Ft. Worth; that Davis did not tell him how to sign the contract; that they got to Trent next morning at 10 o'clock; that they held the cattle away from the station while one of them went down to see about the car. He says Davis had told him Sunday morning that he had already ordered the car for the cattle. The witness states that there is a branch road that runs from Sylvester and connects with the Texas & Pacific at Sweetwater; that he had shipped cattle from Eskota, in Fisher county, and that there was a brand inspector there, but that there was no brand inspector at Trent; that defendant went off with the cattle to Ft. Worth, and that he, witness, went back home taking defendant's horse with him. The state also placed upon the stand the witness S. B. Goode....