Appellant, in his motion for rehearing, strenuously insists that we were in error in our original opinion in holding the evidence sufficient to justify and sustain his conviction. In *Page 633 view of his contention, we deem it but fair to ourselves, as well as to appellant, to summarize the facts as developed upon the trial.
The state's testimony, briefly stated, shows that Drewie Stanley had a sandy-colored sow with five pigs running on the open range. Four of the pigs were black in color and one, a female, was sandy-colored with black spots. The female pig was marked while the others were not. On or about the 30th day of November, 1938, while Jack Rushing and Frank Boulware were riding the range looking for hogs, they saw this sow with her five pigs. Some two or three hours later, they saw a truck parked some distance from the road in the vicinity of where this sow and her pigs ranged. They watched this truck for quite a while, expecting the owner to make his appearance. After waiting for something like two or three hours, they observed the appellant (Bill Jenkins) and Al Varner, coming from the west and going in the direction of where the truck was parked. Appellant at the time was carrying a sack on his shoulder with some object therein. Rushing and Boulware rode toward where the appellant and Varner were, and when they saw Rushing and Boulware approaching, they turned and started walking in the opposite direction. Appellant was seen to lower the sack and take out a sandy-colored pig with black spots, which bore Stanley's mark, and liberated it. The other two black pigs in the sack were of the same size. About two days later, Boulware again saw the sow at which time there was only three pigs with her. Two of the five pigs which she had two days prior thereto were missing and were never seen thereafter. No dead pigs were found by any one on the range.
It is true that appellant denied stealing the pigs. He said that he was hired by Varner to assist him in catching the pigs. However, there is some testimony to the effect that appellant left the county the day before the indictment was returned against him and was not apprehended until nearly a year later. Appellant took the two black pigs home in the sack and a few days later sold them for the price of one dollar each to some unknown person who came through the country buying pigs. The appellant's testimony to the effect that he purchased the pigs from Varner, like all other defensive evidence, was disregarded by the jury.
We are of the opinion that the foregoing condensed statement of the facts is sufficient upon which the jury could reasonably base their conclusion of the appellant's guilt. *Page 634
We therefore overrule the appellant's motion for rehearing.
The foregoing opinion of the Commission of Appeals has been examined by the Judges of the Court of Criminal Appeals and approved by the Court.