Wheeler v. State

• Decision Date: 20 April 1895
• Citation: 30 S.W. 913
• Parties: WHEELER v. STATE.
• Court: Texas Court of Criminal Appeals

30 S.W. 913

WHEELER v. STATE.

Court of Criminal Appeals of Texas.

April 20, 1895.

Appeal from district court, Wharton county; T. S. Reese, Judge.

John Wheeler was convicted of larceny, and appeals. Reversed.

Linn & Mitchell and Dennis & Dennis, for appellant. Mann Trice, Asst. Atty. Gen., for the State.

HENDERSON, J.

The appellant was tried in court below under an indictment charging him with theft of seven head of hogs. He was convicted, and his punishment assessed at confinement in the penitentiary for a term of two years, and from the judgment and sentence of the court below he prosecutes this appeal. It appears from the evidence in this case that one Sandy Diggs, who lived some four or five miles from the defendant, owned nine head of hogs. He lost them on Monday, the 5th of September. On the following Sunday he found and identified six of said hogs in the defendant's slaughter pen, situated about a mile from the town of Wharton. Diggs, with two others, then went to the house of defendant, and called for defendant. He came out, and the prosecutor told him he had found six of his hogs in his pen at the slaughter house. The defendant replied, "If I have got any of your hogs in my pen, you can get them;" and he then said that he bought the hogs in question, with one other one which he had killed a day or two before, making seven in all, from a negro on the Thursday before, and described said negro as a black, heavy-set man, wearing a flop-down white hat, and riding a bay horse with roach mane; that he gave him his name, but that he could not then recollect it; and that one John Collins was there at the time he bought the hogs, and he could probably tell him the man's name. He also said he gave $14 for the hogs, paying $2 apiece. The hogs, when found in the pen by the prosecutor, showed that their ears had been recently marked or cut to a point, cutting out the mark of the prosecutor. The six hogs were turned over by the defendant to the prosecutor on the day thereafter. In addition to the explanations given by defendant as to how he came by the hogs, when his right to them was first questioned, he proved by two other witnesses, besides himself, the purchase of the hogs from the person described by him as having sold him the hogs, but neither of the witnesses could recall the name of the party. The defendant also introduced testimony tending to show that on the Monday when it was alleged that the hogs were stolen he was at another and different place, and could not have been present at the taking of them on said day. He moreover showed by the prosecutor's witnesses that his purchase of the hogs was on Thursday following the Monday when the hogs were alleged to have been stolen. But by one witness, Tom Campbell, it was shown that he saw the alleged party from whom the hogs were purchased driving the hogs towards the pen of defendant, about 100 or 200 yards from said pen, and that at the time neither the defendant nor his butcher were with said party at the pen. On the other hand, the state showed by a witness, Maxey, that he saw the hogs of the prosecutor in the slaughter pen of defendant on the same Monday evening when they were missed by the prosecutor, and that defendant and John Collins were also at the pen, and their horses were hitched near by. On this state of case, the court gave a general charge on theft, and the charge on circumstantial evidence, and also gave the following charge, which the appellant assigns as error, to wit: "Possession of property recently stolen is a circumstance which may be considered by the jury in arriving at the conclusion as to the guilt or innocence of the defendant; but, in order to justify a conviction upon such evidence alone, such possession must be recent after the theft, must be the personal...