Kuykendall v. State , 117 Tex. Crim. 571 ( 1930 )

Conviction for cattle theft; punishment, two years in the penitentiary.

Appellant sold some beef carcasses about sunup March 6th to Watson. Facts were developed upon investigation of how he came by these beeves which seem to the writer to furnish enough support to the inference that the cattle were stolen, to justify the jury in concluding that they were. I will recite some of the facts. Appellant brought these carcasses to San Saba about sunup on the morning of the 6th. He said he bought them from Don Gray, and that the animals were in Gray's mark and brand, and that they were butchered at Gray's ranch. He also stated that he would show the officers the hides off said animals. He brought the beef to town in a Ford car to which was attached a trailer. The officers went with him back to Gray's ranch. Here they found Gray and one Pat Chestnut. When Gray was asked about the hides referred to, he said he had just sold them to a man who lived up somewhere about Eden, and said the man had gone off down a road which Gray indicated. The testimony shows that the night before had been rainy, and that it was drizzling that morning. The officers took the road indicated by Gray and followed it several miles, but saw no fresh car tracks, and were informed at the first house to which they came that no such car had passed. They returned to Gray's, and after some conversation went on back to San Saba. Pat Chestnut testified that after the officers left going up the road indicated by Gray, as taken by the hide buyer, that Gray said to appellant: "I have thrown them off the track," or have "fooled them". That appellant replied to Gray: "Don, we are up against it, and I think we had better kill seven more, and get those hides and turn them over to Mr. Urquhart." (Urquhart was the sheriff). To this Gray replied that he would not kill any more, that cattle were worth sixty-five dollars a head. Appellant said that they had better kill seven head of Gray's cattle with Gray's mark and brand on them. After this conversation Chestnut said he left and went out through Gray's pasture, and presently observed under a big tree, blood, offal, etc., indicating that animals had been freshly or recently butchered at this place. He here observed the tracks of a car having a trailer. He followed these tracks down a pasture road to where he ran across a fire still burning in which were heads and hides of cattle. He said the car and trailer tracks went further on and he followed them to where another fire was still burning and in which were articles similar to those in the first fire. He said the hides looked as though they had been rolled up and pitched in the fire. The fires were still burning when he went by the places shortly after noon of the 6th. Testimony was introduced showing that the grand jury had been unable to ascertain the name of the owner of the seven animals referred to. It was in testimony that Gray told the officers when they reached his ranch that the animals killed by him and appellant were his, and that he had sold them to appellant. Appellant testified in line with this that he had been dipping cattle for Gray, and had bought a remnant and that they butchered them the afternoon and evening of the 5th of March. He admitted that they butchered them at a tree some hundreds of yards north of the ranch house. He said he did not take the hides to town with him when he carried the beef, partly because he could get a better price for the hides at Llano than he could at San Saba, and that he expected to have the hides taken to Llano. He also admitted that the hides of the animals were left at the place where they were butchered, and that he supposed they were there when the officers went out to Gray's making their investigation. He said he knew they suspected him of stealing the cattle, but admitted that he made no offer to take them out and show them the heads for the purpose of satisfying them he had bought animals in Gray's mark and brand. Appellant admitted that he had been convicted for cattle theft before, and for other violations of the law.

It occurs to the writer that this evidence is sufficient to justify the jury in believing that the animals in question were stolen either by appellant alone, or by appellant acting with Gray. In such case we do not think it necessary to show that any particular animals had been at any time seen or known as estrays or running on any of the ranges in San Saba county for a sufficient length of time to establish that they belonged to unknown owners.

The State introduced Mr. Lang, who testifified that he had lost seven head of cattle at or about the time of this alleged theft. We do not think this testimony was admissible. The fact it is said in the Dawson case (Texas Crim. App.), 61 S.W. 489, of the admission of such testimony would be a sufficient basis for the reversal of the judgment, the opinion stating that if appellant stole the cattle of Moore, one of the witnesses who testified to the recent loss of cattle, he should have been indicted for the theft of Moore's cattle; if he stole cattle belonging to the Matador Cattle Company, also shown to have recently lost cattle, he should have been indicted for the theft of cattle from the Matador Cattle Company, but having been indicted for the theft of cattle from an unknown owner, the proof mentioned should not have been made. We find in this record no objection made, however, to the testimony of Mr. Lang. The matter is discussed here largely because of the qualification placed by the learned trial judge upon a bill of exception complaining of the refusal of a charge relative to the Lang cattle, in which qualification the judge seems to be under the impression that it is proper to prove the loss of other cattle belonging to known owners at or about the time of the alleged theft.

We do not believe that the special instruction asked regarding the loss of the Lang cattle, was a correct announcement of the law. Same merely sought to have the jury told that they would not be authorized to convict the defendant because Lang lost cattle, and that such evidence was admitted merely as "a circumstance of said occurrence".

There are a number of bills of exception, each of which has been considered, but none of which are believed to present reversible error.

The judgment will be affirmed.

Affirmed.

Hawkins, J., absent.

ON MOTION FOR REHEARING.