DocketNumber: No. 17022
Citation Numbers: 127 Tex. Crim. 544, 77 S.W.2d 1049
Judges: Lattimore
Filed Date: 1/16/1935
Status: Precedential
Modified Date: 1/13/2023
Upon a careful consideration of the facts in this case we are forced to the conclusion that same are insufficient to show appellant’s guilt, and the original opinion is withdrawn and the following substituted:
The State introduced two witnesses originally. Mr. Gresham testified to the loss of something over one hundred posts, and that he accompanied the city marshal, Mr. Davis, on the night of July 3rd, on a drive from Glen Rose to Cleburne, and that near Cleburne they overtook a truck driven by Sam Rives, uncle of appellant, on which were the alleged stolen posts. Appellant was on the truck with Sam Rives. Mr. Davis testified that he was city marshal at Glen Rose; that about midnight he heard a truck come across Paluxy creek; that it was loaded with posts, and he could not tell whether there was one or two persons on it; that he knew Mr. Gresham had been losing posts, and after some difficulty he located Mr. Greham, talked to him, and they got a car and about three o’clock that night they overtook the truck above referred to near Cleburne, and that it was being driven by Sam Rives, appellant being on the truck, and that the truck was loaded with Mr. Gresham’s posts.
The defense introduced appellant’s wife who testified that Ray Gartrell came to her home about midnight on July 3rd, woke her husband up and had him fix a flat; that she put a lamp in the window in lieu of a better light, and the truck was driven close to the window and the flat was fixed. She said while her husband was fixing the flat Sam Rives came. She heard his ask her husband to go with him that night to Cle
After the defense rested the State put on Ray Gartrell who testified that he took Sam Rives’ truck about eight p. m. that afternoon, drove out and got the posts, and had two flats on his way into Glen Rose; that he got to town about midnight, and drove to appellant’s house and got him to fix the flats. He said he told appellant that he got these posts from Rotan Moore, and that appellant did not know the posts were stolen. He said tihat he was alone in getting the posts.
We have quoted the substance of the testimony relating to the theft of the posts. We do not believe it sufficient. We recognize that under the law when there is a contradiction between the testimony of the State and the defendant, but that for the State sufficiently supports the conclusion of guilt, — this court is without power to review the action of the jury and of the trial court, — but when, as in this case, the testimony not only is lacking in criminating force, but that of the State itself absolutely negatives the guilt of the accused, there seems nothing left for us to do but to reverse the case.
It seems that the State proceeded, both in its questioning and in the form of the charge given, upon the theory that appellant had prepared and worked on his uncle’s truck during the day of July 3rd with knowledge of the fact that it was
Reversed and remanded.