Appellants seem to insist that the proof does not amount to more than a strong suspicion of their guilt. We have again reviewed the testimony and think it amply sufficient. Complaint is made that the testimony as to the ownership of the property is not sustained by the proof. We think the averment of ownership in Mr. Hall was proper, and the fact that he had gone away for a temporary visit in another part of the State, does not support appellants' complaint of a variance in regard to the ownership.
Appellants urge that we came to a wrong conclusion in regard to the identity of the wheat claimed by appellants to have been sold to them by McDaniel, which the defense claimed was *Page 432 placed in a certain middle granary, and taken out by appellants and sold on the occasion here involved. This testimony has been again examined. Appellants hauled seventy-five bushels of wheat to Graham about August 10, 1933, and sold it to Mr. Bailey. Bailey testified that it was new wheat, 1933 wheat. Appellant Wood testified that the wheat they hauled to Graham was wheat he bought from Lewis McDaniel. He said they bought it from Lewis McDaniel and put it in the granary referred to, same being the middle one of three connecting granaries. He further said that he and Hooser unloaded the wheat out of said granary and hauled it to Graham, and sold it to Mr. Bailey. He testified that it was 1932 wheat which he had traded for from Mr. McDaniel. McDaniel testified that he sold Wood some 1932 wheat; that Wood hauled it off, but witness did not know where he put it. Mr. McDaniel testified that a day or two after appellant Wood claimed to have hauled the wheat down to Graham, that he, witness, was over at the place from which witness claimed to have gotten the wheat; that he looked into the middle granary and saw no signs of any wheat having been there for some time.
We do not think the seeming discrepancy between the testimony of certain witnesses as to whether the front or rear truck tracks, observed near the granary, were Silvertown or National tires, would make any difference. The facts showed that the two appellants were up in the neighborhood of the granary from which Mr. Hall's wheat was taken, one day. The next day the load of wheat was gone. It was new wheat, 1933 wheat. That same day appellants sold a load of wheat in Graham to Mr. Bailey. It was new wheat, 1933 wheat. Appellants admitted hauling wheat and selling it to Bailey, but claimed it was 1932 wheat. Conflicts in the testimony are for the jury. We think there was testimony before them to justify their conclusion.
The motion for rehearing will be overruled.
Overruled.