Conviction for theft; punishment, two years in the penitentiary.
This case comes before us without brief or bills of exceptions, and we are confined to passing upon the sufficiency of the evidence, which depends upon whether there is sufficient testimony to corroborate that of the witness J. R. Geurin who was an admitted accomplice. In order to fully understand this contention it will be necessary to recite rather fully the testimony relative thereto.
There is proof in the record that L. E. Bartlett lost three bales of cotton from the Hackberry gin yard on April 23, 1936, — such bales being numbered 909, 913 and 914, — under such circumstances as to constitute the crime of theft.
The witness Geurin in his testimony makes out a clear case of theft of such cotton, the principals in such crime being himself and appellant, Lee Howell. If the jury believed his testimony to be true, which it seems to have done, and that such testimony showed that the defendant was guilty of the offense charged, and that there was other testimony, outside that of the accomplice, tending to connect the appellant with the offense committed, a conclusion of appellant's guilt necessarily follows.
Mr. Marcus testified to having overheard a conversation between the appellant and the accomplice Geurin a short time prior to the date of the alleged theft in which appellant was supposed to have asked Geurin if he didn't want to make some money, and Geurin asked him how such could be made. Appellant answered: "Well, you are a farmer, aren't you?" Upon an affirmative answer appellant said: "Well, you can sell cotton, *Page 568 can't you?" And Geurin replied: "I could if I had it to sell." Appellant replied: "Well, we will get some."
Mr. Dennis Ethridge and his wife who lived near Geurin's place saw a truck that looked like appellant's truck, with appellant in same, going down towards Geurin's place about 11 o'clock on the day of the theft, and saw the same truck come back with appellant and the accomplice in it about 1 o'clock in the afternoon going in the general direction of where the cotton was later taken. While Mr. Ethridge is not absolutely positive in his identification of the parties, his wife is clear and positive as to the occupants of the truck.
Mrs. J. R. Geurin, the wife of the accomplice, testified that the appellant came to their home on the 23rd of April, 1936, about 11 o'clock in the morning and went out in the field where her husband was working and had a talk with him. Then they came in and ate dinner, and went away towards Clairmont. The next time she saw them was on the night following the 23rd, after midnight; she was in bed. Appellant came in and washed his hands, and she testifies: "It looked to me like there was three or four bales of cotton in the truck, ginned cotton." Appellant was driving the truck at all the times she saw them together. To practically the same effect is the testimony of the witness Pauline Geurin.
It is also shown that from the cotton alleged to have been stolen there had been removed the original metal tags placed thereon, and other tags substituted therefor, which substituted tags had been stolen from a gin at Clairmont, and that he, appellant, had worked at such gin about the time or just prior to the time such tags had been taken. It was also shown that the accomplice did not possess a truck, but that on the next morning such accomplice was seen with appellant in appellant's black truck; he was later present in a similar truck in Snyder, and sold the cotton alleged to have been stolen. It was also shown that the truck of appellant had a certain kind of tire thereon, and that the tracks at the gin of the truck in which the cotton was carried therefrom corresponded to the kind of track made by the appellant's truck; it was also shown that the marks on the ground in the gin yard, where the cotton was stolen, evidenced the presence of two persons who had rolled these bales of cotton from their place in the yard to a further place not in view of the passers by on the public road, and that the identity of the cotton was established by certain numbers painted thereon in indelible ink. We thus find three stolen bales of cotton in the possession of the appellant and the accomplice (the accomplice *Page 569 having no cotton just prior to his trip with appellant), and such bales of cotton being disposed of soon thereafter by the accomplice. It is true that at such disposal the testimony, outside that of the accomplice, does not place the appellant, but such cotton was in a truck belonging to the appellant, and in his possession around midnight the night before, and when sold was found in a similar, if not the same, truck, and we think the jury were justified from the evidence in assuming that it was the same truck in which the appellant and the accomplice had brought the cotton to the accomplice's home the night before.
It is our opinion that a sufficient amount of testimony has been exhibited tending to corroborate the testimony of the witness Geurin, showing that appellant was connected with the offense of the unlawful taking of this cotton, and the judgment is affirmed.
Affirmed.
ON MOTION FOR REHEARING.