Stewart v. State

• Citation: 398 S.W.2d 136
• Decision Date: 01 December 1965
• Docket Number: No. 38755,38755
• Parties: Cliff STEWART, Appellant, v. The STATE of Texas, Appellee.
• Court: Court of Appeals of Texas. Court of Criminal Appeals of Texas

Page 136

398 S.W.2d 136

Cliff STEWART, Appellant, v. The STATE of Texas, Appellee.

No. 38755.

Court of Criminal Appeals of Texas.

Dec. 1, 1965.

Rehearing Denied Feb. 2, 1966.

Billy Hall, Littlefield, for appellant.

Alton R. Griffin, Dist. Atty., Jerome H. Schuetzeberg, Asst. Dist. Atty., Lubbock, and Leon B. Douglas, State's Atty., Austin, for the State.

DICE, Commissioner.

The offense is cattle theft; the punishment, two years.

The indictment charged that on or about the 9th day of September, 1963, the appellant did fraudulently take five head of cattle from one Claud Keeton.

It was shown by the state's testimony that the prosecuting witness, Claud Keeton, owned and operated a livestock auction barn located some six or seven miles from Lubbock on Highway 84, referred to as the Slaton highway. Appellant and Murray Edwards were partners, operating under the name of E & S Cattle Company, of Clovis, New Mexico, and on occasion they purchased cattle at the Keeton auction sale.

During the first week in August of 1963, appellant and his partner attended a Keeton sale and purchased a number of head of cattle. The cattle, with tags bearing certain numbers pasted on their backs with gray glue, were put in pens #47 and 49. Before the cattle were moved the following day it was discovered that seven head of Mr. Keeton's cattle were in appellant's pens 47 and 49, and the same number of cattle purchased by appellant were in Keeton's pens. The seven head of Keeton cattle in appellant's pens had tags which had been placed on them with black glue and bore the numbers of the cattle which had been purchased by appellant. Gray glue was used to tag cattle at the Keeton auction, while black glue was used at a 'Four C' auction in Clovis, New Mexico. Although informed of such fact, Mr. Keeton instructed his employees to load the cattle, including his seven head which had the tags switched. The cattle were then hauled away for appellant. Keeton subsequently sold the seven head of cattle which had been purchased by appellant and left in his pens and, as a result of the difference between their weight and quality and the weight and quality of his seven head which appellant had hauled away, he sustained a loss of $225. It was further shown that after the cattle were hauled away for appellant, some torn tags were found, in a chute, which had been on Keeton's cattle, and the tracks of two men were found leading from pens 47 and 49 to where a car had been parked in a field. Where the tracks stopped, a buyer's card, with black glue thereon, from the Gatesville Commission Company, was found which had either the name of appellant or his partner, or both, on it.

On September 9, appellant and Edwards attended a sale at the Keeton barn and purchased thirty-one head of cattle. These cattle, with tags and numbers on their backs, were put in pens 47 and 49. At 6 p. m., the last employee left the place after checking to see that the gates to all pens were closed and that all the alleys were blocked. Around 6:30 p. m., appellant and Edwards were seen by the wife of the auction barn nightwatchman to enter the premises in an automobile and drive toward the loading chute. When her husband, who was deceased at the time of trial, walked toward them they drove in a circle and left the same way they had entered. Thirty minutes to an hour later, appellant and Edwards were seen by the witness to drive in front of her house.

At approximately 8 p. m., Ranger Captain Raymond Waters and other officers stationed themselves at various places of hideout in the pens and grounds. At such time the gates to the pens were closed and there were no cattle milling around in the alleys. Between 10 and 10:30 p. m., appellant and Edwards drove up in an automobile to the pens near the loading chute. After sitting in the car for five minutes, they got out and walked down the alleys. A noise was heard which sounded like a gate opening and the cattle began to mill around in the alleys. The two men then left.

Around 1:30 a. m., a truck...