Stiles v. State

265 S.W. 590, 98 Tex. Crim. 265, 1924 Tex. Crim. App. LEXIS 847

• Court: Court of Criminal Appeals of Texas
• Decided: October 29, 1924
• Docket: No. 8428.
• Status: Published

Opinions

MORROW, Presiding Judge.

— The offense is the theft of cattle; punishment fixed at confinement in the penitentiary for a period Of two years. - -

Ellison had a pasture of 2100 acres, situated in Mason County, about three miles from the McCullough County line. He had in his pasture a number of cattle,- including a certain yearling, - which was the subject of the present controversy. A gate from Ellison’s pasture led into a lane going in the direction of the village of Voca, about five miles distant,- in McCullough County. This gate was often open and some of the cattle -from time to- time strayed into the lane. A yearling which Ellison identified as belonging to him was found in the pasture of Willis in McCullough County. Willis surrendered the animal to Ellison, stating and testifying that he had purchased it from the appellant. Appellant in turn testified that he had purchased the animal from Alvin Holt. The negotiation took place in the lane mentioned, and, according to the appellant, he and Holt went to the pasture of Spiller in McCullough County, where the appellant purchased the yearling, and put it in Willis’ pasture. Holt assisted in driving the animal part of the way. Willis had previously indicated to the appellant his desire to purchase a yearling. The witness Evans, for the State, testified that he saw the yearling -in the field apparently trying to get out; that it did escape and enter the lane mentioned. Soon thereafter the witness observed the appellant and Alvin Holt driving the animal in the opposite direction. From his testimony, if we understand it, the animal at that time was in Mason County. The witness identified the animal as the' one which the appellant had sold to .Willis. Witnesses were introduced by .the appellant tending to show that the animal mentioned by Evans was not the one in question, but was one that belonged to the witness Clevenger, which was rightfully in the possession of the appellant.

There is much conflict in the testimony. Adams, a witness for the appellant, testified that he w'as present at a -conversation -in which Holt was offering to sell to the appellant an animal which he claimed was in Spiller’s pasture.

In a bill of exceptions, complaint is made of the refusal of the court to receive from Adams testimony that Holt had subsequently told him .that the sale had been made. The bill, as qualified, shows that the evidence was received, and that the complaint is merely of an effort to have the witness repeat it.

Bills of Exceptions No. 2 reveals an effort by the appellant to prove by the hearsay declaration of Holt to the effect that he wanted Mr.'Arlege to help him out of trouble about a yearling that he had sold. There was no error in excluding the testimony. The purported confession of Holt in no way identified the animal in question. Moreover, there being evidence connecting the appellant with the taking of the animal, the receipt of the purported confession of Holt would have been obnoxious to the rule excluding the hearsay testimony. See Bowen v. State, 3 Texas Crim. App., 617; Holt v. State, 9 Texas Crim. App., 571; Horton v. State, 24 S. W. Rep., 28; Hodge v. State, 64 S. W. Rep., 242; Greenwood v. State, 84 Texas Crim. Rep., 549.

The sufficiency of the evidence is challenged, but we are constrained to regard it as sufficient. The issues raised were submitted to the jury in a charge of which no complaint is made. The solution of the conflicting theories in favor of the State is binding upon this court.

The judgment is affirmed.

Affirmed.