Stone v. State

• Decision Date: 01 June 1921
• Docket Number: (No. 6246.)
• Citation: 232 S.W. 818
• Parties: STONE v. STATE.
• Court: Texas Court of Criminal Appeals

232 S.W. 818

STONE v. STATE.

(No. 6246.)

Court of Criminal Appeals of Texas.

June 1, 1921.

Rehearing Denied June 22, 1921.

Appeal from District Court, Polk County; J. L. Manry, Judge.

Burl Stone was convicted of the theft of a hog, and he appeals. Affirmed.

J. A. Brazil and Campbell & Murphy, all of Livingston, for appellant.

R. H. Hamilton, Asst. Atty. Gen., for the State.

LATTIMORE, J.

Appellant was convicted in the district court of Polk county of the offense of theft of a hog, and his punishment fixed at confinement in the penitentiary for two years.

Appellant was charged with theft of one hog alleged to be the property of Sam Brown. Witness Owens testified that prior to said alleged theft he sold to appellant "a claim of hogs on Piney—across Piney rather" —and that this was in March or April of 1919, which bunch of hogs consisted of some 30-odd head, among which were some black ones and some unmarked pigs. The hog of Brown, alleged to have been stolen by appellant in the instant case, was a black unmarked pig about five or six months old. Mr. Brown testified that on April 14, 1919, he was in the woods and heard dogs baying, and went in that direction and saw appellant catch his pig and carry him away in a sack; also that some days afterwards he located said pig in a pen near a spring about 250 or 300 yards from appellant's house. This pen was out of sight of the road, and also out of sight of the spring. There were two pigs in said pen at the time. Brown was on horseback and rode up to said pen, and a little later met Mr. Maxey and both rode back to the pen, and Maxey saw said two pigs. He corroborated Brown in this testimony and also in the description of said pigs. Brown said that he located his pig on Sunday, and on the next day about sunrise he went back and found that both pigs had been turned out of the pen mentioned. That he met appellant, who told him in rather a tart conversation, detailed, that he turned the pig out because he saw so many horse tracks around the pen and knew somebody was going to claim it, and concluded that he had better turn it out. Brown also said that in this conversation appellant said he claimed the pig as his, but that, if Brown claimed it, he would let him have it. The testimony showed that appellant had a number of hogpens, amounting to about four, at different places in the woods.

Appellant's wife testified that on Tuesday, after the day fixed by Mr. Brown for the loss of his hog, appellant went hog hunting and came home with two black pigs in a wallet, which pigs were placed by him in the pen near the spring. All the testimony seems to indicate that these were the only pigs in said pen at or about the time of this transaction. Appellant testified, denying his guilt of taking Brown's hog, at the time Brown testified to seeing him so take same, and said that he got the pig, which he had in the pen and which Mr. Brown claimed, over on Piney creek, about 3½ miles from his place, and that it was a part of the Arrington bunch. He said that he allowed Brown to take the pig, but that it was his. He also said, over the objection of his counsel, that Mr. Bunk Jones got the other pig from said pen at the same time Brown got the one claimed by him, the theft of which is here charged. He testified that Jones did not get said pig of his (appellant's) free will, but that he gave his consent and Jones took it.

In his bill of exceptions No. 6 appellant presents his objection to the witness Maxey being permitted to state that he knew the shoat which was in appellant's pen with the one claimed by Brown, and that it was Bunk Jones' shoat. Appellant admitted that this shoat was claimed and carried away by Mr. Jones at the time Mr. Brown got the one claimed by him. Appellant's wife had testified that the two shoats were brought to their place by appellant at the same time. The apparent defense in the case was that of an innocent connection by appellant with Brown's pig, a denial of any fraudulent intent, and a belief that the pig was one bought by him from Owens, and included in what he called the Arrington bunch. In such case the fact of possession by appellant of the alleged stolen property, and also his possession at the same time of other stolen property, would be admissible; the latter as rebutting his claim of possession in good faith of the alleged stolen property, and for various other reasons enumerated in our decisions. Hester v. State, 15 Tex. App. 567; Harwell v. State, 22 Tex. App. 251, 2 S. W. 606; Davison v. State, 12 Tex. App. 214; Denton v. State, 42 Tex. Cr. R. 427, 60 S. W. 670; Petty v. State, 59 Tex. Cr. R. 586, 129 S. W. 615; Overstreet v. State, 68 Tex. Cr. R. 238, 150 S. W. 899.

What we have just said applies to appellant's objection to the state being allowed to prove by the defense witness Sickman what was said relative to the two hogs mentioned —that one man took one and the other man took the other; said evidence tending to show appellant in possession of Jones' hog, as well as that of Brown.

Appellant's bill of exceptions No. 8 shows that the state asked said Sickman relative to a conversation had by him with appellant, viz. "He told you that Mr. Bunk Jones got the other one?" to which witness replied, "Yes, sir; Mr. Bunk Jones told me." Appellant objected, and the court overruled the objection. The question had been answered without objection. Looking to see if the whole matter in the record aids appellant's bill, we observe that said witness, without further question apparently, said, "Yes, sir; he told me that Mr. Bunk Jones got the other hog—Mr. Bunk Jones sai...