Turner v. State

• Decision Date: 20 May 1903
• Citation: 74 S.W. 777
• Parties: TURNER v. STATE.
• Court: Texas Court of Criminal Appeals

74 S.W. 777

TURNER v. STATE.

Court of Criminal Appeals of Texas.

May 20, 1903.

Appeal from District Court, Brazos County; J. C. Scott, Judge.

John Turner was convicted of hog theft, and appeals. Affirmed.

A. G. Board and J. G. Minkert, for appellant. Howard Martin, Asst. Atty. Gen., for the State.

DAVIDSON, P. J.

Conviction for hog theft, the penalty assessed being two years in the penitentiary.

The principal contention is based upon the alleged insufficiency of the evidence. The alleged owner, Markowskie, was the owner of a bunch of eight hogs; four of which were black shotes, about five months old, belonging to one litter. The hogs came up every night, sleeping in the lot, and during the day ranged in that neighborhood in a grass pasture near defendant's, whose house was within sight of Markowskie's, and from Elmore's about 300 or 400 yards. Upon the loss of the hog, search was instituted by the owner and his family, but it was not found. The hogs were in the lot on the morning of February 17th. On the morning of the 18th they were also in the lot, with the exception of one of the shotes. On Thursday after the hog was last seen on Tuesday, the owner was at defendant's house, engaged in conversation with him in regard to appellant cutting wood for him, and while there witness saw three hog's hoofs in the fireplace, and picked up two of them, and before he could secure the third defendant threw it into the fire. He was very much excited when witness picked up the hoofs. These hoofs were soft, showing them to be fresh. Witness testified that, in his opinion, they were the hoofs of his lost hog. They were of the same color, size, and corresponded to the feet of the missing hog. He carried them home, and exhibited them to his wife, informing her where he found them. She then went up to appellant's house, and was followed by her husband. This witness testified that as he approached defendant's house, and after his wife had reached there, defendant's wife ran away from the house, going in the direction of Aaron Elmore's residence, and had something in a sack under her arm; that defendant was also running in that direction and, overtaking his wife, took the bundle from her. They continued running together until they reached Elmore's house, and apparently entered, as witness there lost sight of them. Subsequently they returned, but did not have the bundle. Appellant afterwards told witness he would work and pay for the hog; that he would rather do that than have any trouble, but denied killing the hog. Appellant and Elmore were negroes. All the witnesses who testified in regard to the matter state that appellant had no hogs. Mrs. Markowskie testified to various matters with reference to the habits of the hogs coming up, grazing, etc., as did the other witnesses; and on the occasion spoken of by the last witness in regard to approaching appellant's house testified that she went to appellant's house, and saw a basket in one of the rooms. "I asked defendant what was in the basket, and he said, `Only dirty clothes.' Witness removed the cloth covering it, and saw fresh pork in...