Smith v. State

KRUEGER, Judge.

The offense is theft of one head of cattle. The punishment assessed is confinement in the State penitentiary for a term of two years.

The only question presented to this court for review is the sufficiency of the evidence to justify and sustain the conviction.

Levi Futrell, the self-confessed thief and accomplice in the commission of the alleged offense, testified in behalf of the State that on or about the 22nd day of February, 1939, he and appellant went out to the Matador Ranch and there, without the consent of the owners took the animal in question. This testimony of itself is not sufficient, under the law, to sustain the conviction. It must be corroborated by other facts and circumstances. Now, let us look at the testimony of the other witnesses and see if it corroborates the accomplice as to the identity of the animal, the theft thereof and tends to connect appellant therewith.

The testimony introduced by the State, briefly stated, shows that late in the afternoon of February 22, 1939, Randal Tucker, who lived with his parents about one and one-half miles from the highway leading from Paducah to Childress, noticed a car pass his home traveling the road which leads from the highway to the Matador Ranch and the Gee Vee community; that about dark he again noticed the car coming back, going east towards the highway. The car was pulling a trailer in which there was a horse and also a cow or yearling. The witness did not recognize any of the occupants of the car.

The Sheriff of Cottle County testified in substance that a little while, before sundown he went out on the Childress Highway and met a car pulling a trailer which contained a horse and a white-face yearling; that appellant was driving the car and Levi Futrell was riding with him; that he turned and followed the car and trailer into town. He saw appellant and Futrell unload the yearling; that he inquired of them where they had gotten it. Futrell told the sheriff that he had purchased the yearling from Corny Thomas at Northfield. The horse in the trailer bore fresh saddle marks on his back. The sheriff then left and returned in about forty minutes. He saw Futrell and the appellant engaged in feeding the animal in the stock pen. The next morning the sheriff, accompanied by some of the managers of the Matador Ranch, made some investigation and found some tracks of the same size and tread as those of the trailer. However, they' were badly worn. About one-half mile of the east end of the Matador Ranch they found where a trailer had been pulled up by the side of the road and stopped. They found some hair of a Hereford calf on the grass. They also noticed some medium sized tracks made by a bare-footed horse. While there they heard a cow bawling. They went through the pasture to locate her. They found her and she was traveling. She would go a little ways, stop and bawl and then go on again. They then went after the calf and brought it to the Matador Ranch. They turned the calf out of the trailer into a herd of some 200 or 300 cattle including the cow. They watched this cow and calf all day to see if it would suck the cow. They rounded up the cow and the calf late in the evening and placed the calf in one stock pen and the cow in another. The witness claimed that the next morning when they turned the calf into the lot with the cow he saw the calf suck the cow. He stated that Mr. Russell, Mr., Ellis, Mr. Riley and Mr. Felts and his son were present at the time.

Mr. J. E. Russell, who was with the sheriff when making the investigation and experiments, testified that he was there the next morning when the cow and calf were left together. The calf did not suck the cow in the pen. It did not suck until after it had been loaded into the trailer with the cow. The only way he could tell that it was a Matador calf was the fact that the cow let it suck the next day after they were put into the trailer; that he had noticed a few times when cattle were rounded up close together that a calf would suck the wrong cow.

Mr. Deaton testified that he was present; that he did not see the calf suck the cow but one time, and that was when the cow and the calf were in the trailer.

Mr. Warren testified that he took the cow and calf and placed them in the feeding lot and kept them the rest of the winter; that he saw the calf suck the cow several times.

Commodore Thomas testified that he did not live out at Northfield; that he had never sold - any cattle to Levi Futrell or Smoky Smith; that he had a brother living out at Northfield.

Lloyd Thomas testified that he lived at Northfield in Cottle County; that he never at any time sold any cattle to Levi Futrell or Smoky Smith; that there were other Thomases living around Northfield.

There was the testimony by several cattle men to the effect that some cows will permit calves other than their own to suck them. There was also testimony given by several witnesses that on the day in question they saw the appellant and Levi Futrell on the highway leading from Paducah to Childress; that they had a trailer hitched to their car which contained a horse and that they saw them purchase a white-face bull calf which was unbranded. They saw a man execute a bill of sale to the animal which was witnessed by one of the parties present. A number of witnesses testified to the appellant’s good reputation as a law-abiding citizen.

In order for the State to sustain this conviction it was necessary to establish the theft of the animal. This it sought to do by Levi Futrell, a self-confessed accomplice, but this is not sufficient to justify the conviction, inasmuch as he was an accomplice and had to be corroborated. In our opinion, the corroboration is entirely insufficient to meet the requirements of the law. The State sought to corroborate Futrell by showing that the calf sucked a cow which belonged to the Matador Ranch. However, the testimony shows that the calf was away from the cow that afternoon, all that night and part of the next morning, and when it was turned into the pasture with the cow, it did not suck her and at no time did they see it suck the cow until she was placed in the trailer with the calf. There was much testimony to the effect that at times cows will permit calves other than their own to suck them. Consequently, this testimony is of no probative force in seeking to establish the fact that the calf in question belonged to the Matador people. No one could identify the calf, not even the men in charge of the cattle on the Matador Ranch, as belonging to . the Matador people. The calf in question was merely an unbranded white-face male, about ten or twelve months’ old, sometimes known as a maverick.

In Volume 41, p. 241, sec. 146 of Tex. Jur., it is said: “The statutory provision (C. C. P. Art. 718) that a conviction cannot be had upon the testimony of an accomplice unless corroborated by other evidence tending to connect the defendant with the offense committed applies in prosecutions for theft. The corpus delicti cannot be established by the uncorroborated testimony of an accomplice. It is also necessary to. corroborate the testimony of an accomplice as to the ownership of the stolen property, the taking and the presence of the defendant when the offense was committed.”

In the case of Williams v. State, 82 Tex. Cr. R. 215, this court speaking through Judge Davidson, said: “In a case where the ownership of the animal alleged to be stolen is proved only by the uncorroborated testimony of the accomplice, it is not sufficient on the issue of ownership, and therefore, insufficient to support the conviction.” See also Hanson v. State, 27 Tex. Cr. App. 140.

When we eliminate the testimony of the accomplice Futrell, what facts have we left to show the theft? Not any except that the alleged stolen calf sucked a cow belonging to the Matador people after they had been placed in the trailer, and not while it was turned into the herd in the pasture and watched all day. Is this sufficient to show that the animal was stolen from the Matador people? We think not. It occurs to us that a calf still sucking a cow when taken away from its mother in the afternoon and kept away from her until the next day and then returned to its mother would immediately run to her and suck her. That is what the sheriff and his companions expected to see when they brought the calf to the ranch and that is why they watched it, but it failed to do what they evidently expected it would do and what would have been natural for it to do. Consequently, the conduct of the yearling in question has no probative force. See McGoodwin v. State, 134 Tex. Cr. R. 231; Harrison v. State, 117 Tex. Cr. R. 565.

Having reached the conclusion that the accomplice testimony was not sufficiently corroborated, we feel constrained to reverse the judgment of the trial court.

The foregoing opinion of the Commission of Appeals has been examined by the Judges of the Court of Criminal Appeals and approved by the Court.