In his motion for rehearing appellant urged that we were in error in our original opinion in reaching the conclusion that the trial court was not required to charge on circumstantial evidence, criticism of its omission being pertinently called to the court's attention by objections to the charge given.
After a careful re-examination of the record I have concluded that upon the point mentioned we were in error.
The indictment charged that appellant, in Lubbock County, fraudulently embezzled, misapplied and converted to his own use, without his principal's consent, eighty-one head of cattle which had come into appellant's possession by virtue of his agency. This eighty-one head of cattle had been purchased by appellant in Kent County for his principal and paid for by a draft drawn on his principal by appellant. The State prosecuted in Lubbock County, under Article 203, C. C. P., which reads as follows:
"Embezzlement may be prosecuted in any county in which the offender may have taken or received the property, or through or into which he may have undertaken to transport it."
There was nothing wrong with the purchase of the cattle in Kent County. Appellant was authorized to so purchase. The factum probandum, that is, the necessary main criminal fact to be established, under the State's charge, was the conversion of the identical property in Lubbock. It is appellant's contention that the State relied on circumstantial evidence to prove this vital fact. Under the circumstances here present and the character of the property involved, we believe the same rule applies as in cases of theft where the identity of the alleged stolen property is proven by circumstantial evidence. The principle has been frequently announced and consistently followed that the identity of stolen property is a material fact, and that where it may be shown by circumstantial evidence the jury must be instructed regarding such evidence whenever the facts call for it. Rampley v. State, 127 Tex.Crim. R.,76 S.W.2d 515; Childers v. State, 37 Tex.Crim. R.,35 S.W. 654; Felts v. State, 53 Tex.Crim. R., 108 S.W. 654; Pierson v. State, 78 Tex.Crim. R., 180 S.W. 1080, and Moore v. State, 85 Tex.Crim. R., 214 S.W. 347. *Page 174
The evidence here shows that on October 24, 1940, appellant purchased for his principal, from Blackwell and Brantner at Jayton, in Kent County, eighty-one head of "mixed calves." They were delivered to appellant in "the pens" at Jayton. Under his contract appellant was supposed to ship the calves to his principal in Iowa. Mr. Kelly testified, "I moved some cattle for Mr. Stocks (appellant) back about October 25, 1940 * * * I made a trade with him to move them to Lubbock from Jayton * * * I think he said to deliver them to the Lubbock Auction and Commission Company."
Kelly does not state the number or kind of cattle taken to Lubbock by him, nor where in Jayton the cattle were delivered to him, nor by whom. He does not even say he delivered them to the Lubbock Auction and Commission Company. The facts further show that on October 25, 1940, the latter company made two sales of cattle for appellant, one sale being for forty head described in the account sales as steers and heifers, and another sale of forty-one head of steers and heifers. A witness who was connected with said auction and commission company testified that it was "customary in the live-stock trade to refer to heifers and steers as mixed calves, depending on their size and age." The account sales further shows the weights of the cattle to be such as would support the conclusion that they were light weight, young cattle. The State also introduced in evidence a letter from appellant to his principal written from California on May 1, 1941, in which appellant admits that he owed his principal four thousand dollars, but the letter makes no mention of the particular transaction here involved. There is no direct admission of the conversion of the eighty-one head of cattle which would take the case out of the rule of circumstantial evidence. See Meyers v. State, 22 S.W.2d 922. The only evidence upon which the State relied to show the conversion in Lubbock County of the cattle which came into appellant's possession in Kent County was the sale in Lubbock County of eighty-one head of cattle at the instance of appellant, and for which he received payment.
If there had been direct evidence from Blackwell and Brantner or any other witness that the eighty-one head of "mixed calves" delivered to appellant in Kent County were the same cattle Mr. Kelly hauled for appellant to Lubbock, and direct evidence from some witness that the cattle sold by the commission company for appellant in Lubbock were the same cattle delivered to the company by Kelly, it would of course have taken the case out of the realm of circumstantial evidence; *Page 175 but no such evidence is in the record, and the identity of the cattle sold with those purchased is an inference from the facts heretofore related. "If the main fact (here being the conversion of the particular property purchased by appellant in Kent County) is proved as a matter of inference from other facts in evidence the case rests wholly, in a legal sense, upon circumstantial evidence." Branch's Ann. Tex. Penal Code, Sec. 2478, p. 1341, and cases cited thereunder.
It is not to be understood as intimated that the evidence in the record did not warrant the jury in drawing the inference from the circumstances proven that the cattle sold were the same as those purchased. Consideration has been of the legal proposition that appellant was entitled to a charge on circumstantial evidence, which desire on his part was directed to the trial court's attention by a pertinent objection because of its omission from the charge given.
The motion for rehearing should be granted; the judgment of affirmance set aside, and the judgment of the trial court reversed and the cause remanded. My brethren have reached a different conclusion to which, for the reasons herein stated, I respectfully dissent.