O'Quinn v. State

• Decision Date: 09 December 1908
• Citation: 115 S.W. 39
• Parties: O'QUINN v. STATE.
• Court: Texas Court of Criminal Appeals

115 S.W. 39

O'QUINN v. STATE.

Court of Criminal Appeals of Texas.

December 9, 1908.

Appeal from District Court, Angelina County; James I. Perkins, Judge.

Jesse O'Quinn was convicted of hog theft, and he appeals. Reversed and remanded.

E. B. Robb and Geo. S. King, for appellant. F. J. McCord, Asst. Atty. Gen., for the State.

DAVIDSON, P. J.

Appellant was convicted of hog theft; his punishment being assessed at two years' confinement in the penitentiary.

The record discloses that W. L. Thomas, the alleged owner, was a brother of John Thomas, and cousin of appellant and McClure, three of the parties supposed to be implicated in the alleged hog theft. The parties live in the same neighborhood, about 15 miles east of Lufkin, the county site. On the morning of Saturday, about 2 o'clock, Hubbard testifies he and some friends were playing a game of cards "for fun" at his residence about 4½ miles east of Lufkin; that he was attracted by the noise of his dogs, and, going upon his gallery, noticed passing along the public road a two-horse wagon with a couple of little black mules pulling it; with the wagon were the three above-named parties and one Dan Sims; that he was about 40 or 50 feet distance from the parties. The moon was shining, and he recognized the four; two of them being in the wagon, and two riding horseback. He also observed that the sideboards of the wagon were low, and in the wagon he noticed some dressed hogs, with their feet sticking up. Somewhere about 4 or 5 o'clock in the morning, Gibbs, the owner of a meat market in Lufkin, testifies that he went to his market and found some or all of the above-named parties at his market. It was remarked by some one of them that they had taken charge, and had brought the hogs they contracted him. He declined to take the hogs, as he had made a contract with another party, and it seems that his "meat chopper," as he terms him, had made the contract for the purchase of these hogs without the witness' knowledge. The parties remarked that they would sell the hogs to some one else, and went away. The wagon, with two of the parties in it, appellant being one, was seen returning along the public road in the direction of their home, which, as before stated, was about 15 miles east of Lufkin. They were seen by quite a number of witnesses traveling along the road, one of whom saw them at a lake, where they stopped to feed their mules, and passed within 15 or 20 feet of the wagon. Others saw them further down the road. Two or three of the witnesses testified that they looked in the wagon, and that one of them got out of the wagon a bottle of whisky and took a drink. None of these witnesses saw any hogs in the wagon on the return trip.

Appellant took the stand in his own behalf, and stated that between 12 and 2 o'clock Saturday morning Sims, Thomas, and McClure came by his home, and called him up, and requested him to go to town with them. This he declined. An hour or so after they had passed he did get up, saddle his horse, and went to Lufkin. He stated that he was going to Lufkin that day any way to get medicine for his aunt. After he reached town he says he had nothing to do with the alleged codefendants nor the hogs. After reaching town he hitched his horse at a rack, got his breakfast at a restaurant, and went around to the market, where the other parties were, and there one of them requested him (appellant) to loan him his horse and go back in the wagon until the borrower could overtake him. To this proposition appellant acceded, and did return in the wagon with one of the codefendants. After reaching somewhere in the neighborhood of three or four miles of home, the party who borrowed his horse overtook him, and he (appellant) mounted his horse, and he and the other party riding horseback separated from those driving the wagon; he (appellant) going to his house to get some nails to fix his fish trap. He sustained this statement by other testimony. The sheriff followed the wagon to a point where it turned and went another direction, and looked about at that point to see if he could find any hogs, but failed. There were others with him, who also assisted in searching. They requested one James to assist in searching; but he either declined, or did not accept at the time, but later during the day went to the point indicated and discovered where six dressed hogs were located about 160 or 170 yards from the road. Three of these were covered with a slicker. The other three had brush pulled over them, and, to use this witness' expression, they were "in a rotting condition." W. L. Thomas, the alleged owner, took great interest in the case, and employed counsel to assist in the prosecution, and offered a reward, or at least assisted in paying the reward for the discovery of the hogs. He testifies that he discovered at the Tom Arnold old place evidence of where hogs had been killed and dressed, some hair and blood, and an ax which had been used, he says, in knocking the hogs in the head. Somewhere on the Tom Arnold old place one of the defendants, Dan Sims, resided. Appellant, however, lived some distance away—two or three miles, perhaps. It is also testified that the marks on the dead hogs had been changed, and there is considerable testimony as to whether the marks were changed after or before the death of the hogs. The changing of the marks is said to have occurred in the left ear. Thomas' mark in the left ear was a split and under bit. The mark had been so changed as to make it an under half crop. Some of the witnesses testify that the change did not entirely obliterate all evidence of the under bit mark.

Appellant testified that he had nothing to do with the killing of the hogs, and knew nothing of it, and that on their return from town there were no hogs in the wagon. No witness located any hogs in the wagon on the return trip. No witness undertook to identify the hogs in the wagon that were carried to Lufkin. In fact, no one testified in regard to it one way or the other. Gibbs testified to seeing five or six hogs in the wagon, but gave no description. The wagon was an ordinary two-horse wagon. Some of the witnesses state it had low sideboards. One or two of them testified that it had no bed on it, but simply some planks laid so as to reach from the front to the hind axle of the wagon. There were two slickers in the wagon and an old quilt. Some of the state witnesses testify to seeing a box in the wagon, 20 or 30 inches square, about the height of the sideboards. One witness said he saw some meat in it, but did not know whether it was hog meat or beef. None of them, however, locate the hogs in the wagon. This, perhaps, is a sufficient statement of the case to dispose of the questions involved in the assignments of error.

Watts, the sheriff, was permitted to testify that on the morning the parties were in the town of Lufkin he saw Charlie McClure and John Thomas, who are separately indicted for the same offense, in a restaurant in the town of Lufkin sitting near together and having a conversation personally in a confidential way. Appellant objected to this for various reasons, among others, that appellant was not present, and the acts of McClure and Thomas were subsequent to the alleged commission of the offense, and not in the presence of appellant, and could not, therefore, be testimony against him. A colloquy then ensued between the court and counsel, which is recited in the bill. The court by way of qualification states that the bill does not set out the subject-matter correctly, and refers to evidence on page 41 for correct statement as to how the matter occurred. Turning to that particular page of the statement of facts, we find that it recites, after giving the colloquy between the court and appellant's counsel, the following: Appellant's objection being overruled, witness answers as follows: "After I walked up in front of the market, I then walked around to the front on Cotton Square, somewhere about where the Stag Restaurant is, and I was standing back against the dark wall, and I saw Charley McClure and John Thomas in the restaurant. Charley and John had a little talk there; but, of course, I never heard it, and they came out and walked on down looking for their horses. B. F. Nerren was with me at that time, and then I went back to Gibbs' market, and there was a horse standing there, and I went to see about the horse. It was Jesse O'Quinn's horse, and I went through the saddle pockets," etc. We are of opinion that the evidence objected to was not admissible. What was said between them was certainly not admissible against appellant. This, it seems, was after the parties had left the market and had separated, and appellant was not present.

The next bill recites the state was allowed to prove by the witness Henry Nerren that on the day of the return of the wagon from Lufkin he was working between the town of Lufkin and the neighborhood in which defendant lived, and that some time during that day, and shortly after he had seen a wagon pass where he was at work, driven by the defendant and Dan Sims, he saw two men whom he took to be John Thomas and Charlie McClure riding horseback; that one of them was riding a gray horse, and the other a black horse; that they came within a short distance of where he was at work, and then quit the road, turned, and went up the road that he usually traveled with his log wagon, as if they were going back towards camp; that they did not follow the wagon, but parted and went in a different direction; that he saw them just as they turned and went into the brush, and could not see them any further. Various objections were urged to this. It may be stated that these two parties were two of the crowd that were in Lufkin, and were riding out from Lufkin in the general direction of home on horseback. Appellant and Dan Sims had preceded them in the wagon. These were acts between parties in the absence of the defendant, and for...