Williams v. State

• Decision Date: 20 April 1898
• Citation: 45 S.W. 494
• Court: Texas Court of Criminal Appeals
• Parties: WILLIAMS v. STATE.

45 S.W. 494

WILLIAMS v. STATE.

Court of Criminal Appeals of Texas.

April 20, 1898.

Appeal from district court, Freestone county; L. B. Cobb, Judge.

Hun Williams was convicted of theft, and he appeals. Affirmed.

Boyd, Compton & Anderson, for appellant. W. W. Walling and Mann Trice, for the State.

HENDERSON, J.

Appellant was convicted of the theft of one head of cattle, and his punishment assessed at confinement in the penitentiary for a term of four years; hence this appeal.

Appellant complains that the court erred in failing to instruct the jury on circumstantial evidence. We cannot regard this as a case wholly depending on circumstantial evidence. Will Lewis testified positively to the taking by appellant of the head of cattle in controversy. True, he was an accomplice, but this fact would not necessitate a charge on circumstantial evidence. Nor would the fact that the identity of the animal taken by Lewis and appellant as being the same animal which belonged to Green Duncan was established by circumstantial evidence make this a case wholly depending on that character of testimony. The animal stolen by said parties was marked by them in a certain mark. When the owner afterwards saw his cow, she was freshly marked in the same mark, as testified to by said Lewis. Besides, there were other circumstances establishing the identity of the animal as being the same that belonged to Green Duncan.

On the question as to the sufficiency of the evidence, in our opinion it is ample. Will Lewis, an accomplice, testified positively to the taking of the head of cattle in question by appellant and himself; and Tom Joy, who was not an accomplice, testified that, at the time of the alleged theft, Will Lewis and appellant approached him, and proposed to sell him a cow. They told him that they had put the cow in the McDaniel field, about a mile west of the town of Butler, and they came from that direction to sell him the cow. It appears that they had previously spoken to this witness about selling him a cow. On the Saturday morning, when he went out to look at the cow, Lewis and Henry Turner went with him, but the cow had then gotten out of the McDaniel pasture. True, this witness says that most of the talking was done by Will Lewis at the time they proposed to sell him the cow; but appellant also, according to the statement of said witness, proposed to sell her, and stated that she was a fat cow. Appellant gave Joy the earmarks on said cow he proposed to sell...