Craver v. State

ON REHEARING.

October 18, 1922.

HAWKINS, Judge.

— In his motion for rehearing appellant urges that the evidence -relied upon by the State being wholly circumstantial, is not of that probative force required by the law, and is, therefore, not sufficient to support the judgment of conviction. The statement of facts consists of eighty-two type-written pages, and it is impracticable to undertake to set out in detail all of the evidence upon which the State relied for a conviction. The premises burglarized was a bam, from which pecans were stolen. Four sets of tracks were discovered leading from the house of Jim Graver, Sr., to the bam and also returning to the house. On the afternoon and early in the night prior to the burglary heavy rains fell, which would in the natural course of things obliterate tracks which had been made prior thereto. The tracks both going to and from the barn are shown by the witnesses to have been made during the night some time after the rain. They are described in detail and as we gather from the evidence were followed uninterruptedly from the house to the barn and back. At the wood pile of Jim Graver, Sr., three of the returning tracks were lost, but one continued on to the house of appellant, Jim Graver, Jr. One of the tracks between the barn and premises of Jim Graver, Sr., was made by a run-down shoe with tacks in the toes. A resident of that house was found to wear a shoe corresponding exactly with these tracks. Another was made by large shoes, one of which only was half-soled. Jim Graver, Sr. was found to have a pair of shoes corresponding to this description. The tracks which led from the barn to Jim Graver’s, Sr. and on to Jim Graver’s, Jr. were measured and the shoe of this appellant, Jim Graver, Jr. was measured and corresponded thereto. Under a hay stack near the house of Jim Graver, Sr., two sacks of pecans were found which were positively identified by the owner of the burglarized barn as not only being part of the pecans which he lost, but the sacks in which they were found were also identified as his sacks. No tracks could be followed from the wood pile to .this hay stack on account of straw being scattered about and the tracks of animals round about, but the straw showed to have been disturbed after the rain. These pecans were claimed by one John Henry McCulloch (the owner of the run-down shoes) who lived at the house of Jim Graver, Sr. No explanation is offered as to why it was thought necessary to conceal the pecans in the hay stack. Other pecans were discovered at the house, but Thomas denied ownership of these, and identified the “hay stack” pecans as having been gathered by him off of one tree, they being of a very peculiar shape. At the house of Jim Graver, Jr., there were also found some pecans in á box, over which some of the witnesses say there was cottonseed. "iese pecans were claimed by appellant but were identified by Thomas as his pecans. He gives his reasons for so asserting as follows:

That when he (witness) gathered the pecans he burned the trash and leaves under the tree; that after burning off the leaves and trash he knocked the pecans down; that they were “ashy” and others that he had not picked up before burning appeared to be scorched and parched. He said this was the condition of the pecans when he gathered them and put them in the barn, and that he found pecans to match them in appellant’s box. We have stated so much of the testimony on account of the insistence with which appellant contends the evidence is insufficient to support the conviction.

We regret that we are unable to bring our minds in accord with his view of the matter, but after a second careful review of the testimony, are convinced that the proper disposition was made of the case in the original opinion, and the motion for rehearing will be overruled.

Overruled.