Perez v. State

398 S.W.2d 130, 1965 Tex. Crim. App. LEXIS 1250

Opinions

MORRISON, Judge.

The offense is cattle theft; the punishment, two years.

The-indictment alleged the theft of three cattle from Roy Yaeger on March 21, 1964. Yaeger testified that he was away from home in the hospital on the night three calves were delivered to the auction barn at Alice by one Samuel Torres. Appellant was with Torres at the time, and they were traveling in appellant’s pickup. The primary question presented is the sufficiency of the evidence to show that the calves were the property of Yaeger. The calves were not marked or branded, and Yaeger did not remember seeing them prior to the theft and did not see them thereafter. Appellant relies upon our recent holding in Roberts v. State, Tex.Cr.App., 377 S.W.2d 656, wherein we said “⅜ * * it is well settled in this state that where property is alleged to have been stolen from a certain named and designated person, the proof must show beyond a reasonable doubt that such property belonged to the person from whom it is alleged to have been stolen.”

It is clear that the State failed to meet this burden until near the end of the case when on cross examination of appellant the following occurred:

“Q. But you well knew that these calves were stolen from Mr. Roy Yaeger’s ranch, did you not?

A. I know now.

* * * * * ⅜

“Q. Isaac, isn’t it the truth that Samuel Torres talked to you at Hino-josa’s Auto Parts down here, and that afternoon, on Saturday, he says, 'We can use my truck, go over and load the calves over at Mr. Roy Yaeger’s ranch. Mr. Roy Yaeger is not here. He’s out of town, and we can load them up and take them to the sale at Edinburg where no one will see us.’ Isn’t that what you agreed with Samuel Torres to do.”

A. Well, he wants to do it, and I told him, I said, ‘You can use my pick-up,’ and I agreed to go with him.”

While it is true that appellant denied that he received any of the proceeds of the sale, he did admit that Torres agreed to pay him $25.00 for the trip and that he and Torres made a trip with the calves to Edinburg, but later unloaded the calves at the auction barn in Alice. It is also true that appellant at one juncture in his testimony denied that he participated in the thefts, but the jury had the right to reject that part of his testimony and accept the quoted portion above. We are aware of no authority holding that the thieves must share equally in the fruits of the theft. When appellant agreed to accept $25.00 for the use of his pickup to be used in an unlawful venture, he became as much a principal as if this agreement were to share the proceeds equally.

Finding the evidence sufficient to support the conviction and no reversible error appearing, the judgment is affirmed.