This conviction was for misdemeanor theft, and appellant's punishment was fixed at ten days in jail and a fine of $50. *Page 484
The widow Struhall owned chickens, and on a certain night six of them disappeared from her hen house, among the number a white rooster with certain yellow feathers on his back, a dominique hen, a white hen, a black and two brown hens. Fresh shoe tracks were found next morning in the chicken yard along with a lot of fresh feathers; three chicken heads and some blood and feathers were found in a nearby vacant lot. For some reason, the officers who were notified the morning after the loss of the chickens, went to the restaurant conducted by appellant about 9 or 10 o'clock that morning and there found on his kitchen table six dressed chickens. Suspicion as to identity of the chickens as being Mrs. Struhall's, and of appellant as being their taker, led to questions as to where and how appellant got said chickens so found in his possession. He said he bought them from two little boys. Pressed for their names, he said he did not know, but later said they were named Willie and Frankie, but he did not know their surnames. He described the chickens before they were dressed as being two brown, one dominique and some black hens, beside a white rooster with a yellow saddle. He also said he had not paid the boys, but they would be back that afternoon about 6 o'clock for their money. The officers hid across the street that afternoon but no boys came to appellant's place. About 8 o'clock they again went to see what he had to say, and he then claimed that though the boys had not come, a man named George had been there and demanded pay for the fowls, but that he had not paid him. The next morning the insistent officers again interviewed appellant, and he said George Kellog had been to see him again the night before and wanted him to pay for the chickens, and that Kellog lived on the Cabiness farm. The officers went out to the Cabiness place but failed to find Kellog, and they seem to have then proceeded against appellant. The city marshal testified that he knew no boys in Granger, a town of about a thousand people, named Willie or Frankie, and also when they got to appellant's place the chickens had already been picked and cleaned.
This is the second appeal. Sec. 86 Tex.Crim. Rep.. The case was reversed at a former time because of the erroneous admission of a statement of appellant. On the instant trial certain exceptions were reserved to the court's charge, in substance that a verdict of not guilty should have been instructed; that the identity of the chickens had not been established; that appellant's explanation of his possession was reasonable, and its falsity not shown; that the material allegations of the information had not been proven. None of these appear to us to be in the nature of exceptions to the court's charge, nor are they sufficient to bring same before us for review.
Appellant asked a peremptory instruction in his favor, and also another special charge, the latter, however, appearing to be covered by the main charge of the trial court. The evidence as to the identity of the chickens is circumstantial, but we are not prepared to say that same is so wanting in weight and sufficiency as to make the verdict of the jury *Page 485 without support or to call for a peremptory charge in favor of appellant. The correspondence in the time of loss by Mrs. Struhall and the acquisition by appellant; the same number of chickens; the same general description by color and sex; one rooster and five hens; the expedition with which the fowls were picked and cleaned, all six of them being so treated in the early morning of one day; the Willie-Frankie story; the failure to find George Kellog; the entire failure of the evidence to account in any satisfactory manner for appellant's possession of the six chickens so closely identified and connected, all seem to us to point with sufficient clearness to appellant's connection with the taking of said chickens as to have justified the jury in their conclusion.
Having found no error in the record the judgment of the trial court will be affirmed.
Affirmed.
ON REHEARING. May 4, 1921.