Holloway v. State, 78 S.W.2d 627

Holloway v. State

78 S.W.2d 627 | Tex. Crim. App. | 1935

LATTIMORE, Judge.

Conviction for theft of turkeys; punishment, a fine of fifty dollars, and confinement in the county jail for ten days.

We find in the record only one bill of exceptions, which brings forward complaint of the fact that a witness testified to the careful examination of the alleged stolen turkeys in question by Mr. Ogle, the owner, at the time said turkeys were found in Mason County, where the State claimed they had been taken and sold by appellant. If we understand the complaint made by appellant in said bill, it is*in the nature of an assertion that the examination made by Mr. Ogle was res inter alios acta, — that he, appellant, was not present and that the care exhibited by Mr. Ogle and the length of time taken by him in the examination of said turkeys was some hurtful matter which should not have been introduced. We find nothing in the complaint. If there be any serious question in this case, it is that of the identification of the alleged stolen turkeys, and the testimony as to the careful examination of said turkeys and the manner in which the examination was made by the owner, would be competent and material.

We think the evidence sufficiently supports the jury’s conclusion of guilt. Mr. Ogle lost six turkeys about the 15th of November, 1933. They were taken from a pen near Mr. Ogle’s house some time during the night. Appellant was seen in the immediate vicinity that night with a coop in his car. Shortly thereafter he sold in a neighboring county turkeys answering in every way the description of the turkeys of Mr. Ogle. The turkeys were marked by having the rear toe cut off the right foot of each. The feather markings of the stolen turkeys, as *563well as the toe marks, of those sold by appellant were identical. Mr. Ogle testified to the fact that two turkeys were taken on said night, which had the same markings but which he did not recover,— also had sore heads and were a little light in weight. The purchaser from appellant said he declined to take two of the turkeys brought to his place by appellant, which corresponded in markings to the alleged stolen turkeys, because they were sore headed and light in weight. The sufficiency of the identification was a question for the jury. We believe there was evidnce enough before them to justify them in their belief that the turkeys sold by appellant in Mason County, were the turkeys lost by Mr. Ogle in McCulloch County. The case was submitted to the jury on the law of circumstantial evidence.

Finding no error in the record, the judgment will be affirmed.

Affirmed.