This case was reversed on the ground that the testimony not only supported the averment of ownership in Singley, but also supported an averment of ownership in Roach, and that the latter question should have been submitted to the jury. In the light of the State's motion for rehearing we have again reviewed the facts, and deem same to sufficiently show that the property alleged to have been stolen was at the time in the care, management and control of Singley, the general owner thereof, and that it was not necessary to submit the second count. To make plain this fact it becomes necessary to state the testimony on the point of ownership of the stolen cotton. Singley testified that he took three bales of cotton to the Rotan Gin Company, of which Mr. Roach was manager. We quote Singley's testimony:
"I just ginned my cotton at the gin and then carried it down to the public cotton yard, and got a receipt for it, and left it there. Either Mr. Roach or Louie Miller signed the receipt. Louie Miller had been the weigher, but I am not sure that he was taking care of it right then. I would say I put that cotton in there, somewhere in January. Neither Mr. Miller nor Mr. Roach ever came to me and got my consent for the cotton weigher to resign and turn it over to Mr. Roach, or anything like that."
Mr. Roach testified: *Page 238
"I am manager of the Rotan Gin Company. * * * In that capacity on or about the 5th of June, 1936, I had in my care and custody and control three bales of cotton belonging to Arthur Singley. The way that cotton came into my care and custody, it had been ginned at our gin. * * * I ginned for Arthur Singley three bales of cotton in the 1935 ginning season. * * * I was not the public weigher at that time. We did own that yard where the cotton was. I was not the cotton weigher in 1935."
There were two counts in the indictment, one charging theft of three bales of cotton from Singley, without his consent, etc.; the other charging theft of three bales of cotton from Roach, without his consent, etc. The court only submitted count one, evidently concluding there was not testimony to support the averment of ownership in Roach. We have concluded that the action of the trial judge was correct. While Mr. Roach affirmed that he had the cotton in his care, custody and control, still in the next breath he explained that his such statement was based solely on the fact that he had ginned the cotton for Mr. Singley, — which explanation removed from this case the issue as to his special ownership of said cotton. We regard the facts as showing without dispute that after the cotton was ginned Singley, the owner, took same into his manual possession, and then stored it with the public cotton weigher, Mr. Miller, from whom he took a receipt. The fact that thereafter Miller resigned would not vest special ownership in Mr. Roach, as we understand the record, but the care, control and management of the cotton would revert to the general owner, Mr. Singley, and this would call for and justify the court's charge of theft from Singley as owner.
Appellant urges that the evidence is not sufficient to support the conviction. We have carefully reviewed the testimony of all the witnesses, and find ourselves unable to agree with appellant's contention. Without going into the testimony of each witness, there is evidence showing that appellant lived at Jayton, some miles from Clairemont, the county seat of Kent County, Texas, where Geurin lived. Appellant worked at a gin in Jayton, and in a box at the gin there were a number of cotton tickets, some of which disappeared about the time of this theft. Geurin testified that appellant had approached him with the proposition out of which he said they could make some money, viz: that they should steal cotton and sell it. Appellant owned a truck. A number of witnesses testified that on the morning of June 4th they saw appellant with Geurin in Clairemont, *Page 239 and that both men got into appellant's truck and left. They were seen together on the highway by three witnesses, and were at the time headed towards Rotan. Geurin testified that they went to a number of towns together that day and during the night, and that at about ten or eleven o'clock that night they went to the Farmers' Gin at Rotan and loaded on three bales of cotton, which they took over to Snyder. They had cotton hooks, and on the way to Snyder they stopped and appellant changed the cotton tags on the bales of cotton, and when they got to Snyder they unloaded the cotton from the truck at a cotton yard. Geurin said he then hunted up the cotton weigher and had the cotton weighed, and took samples of it and went up town to sell it, and was soon after arrested. He said appellant had no samples but was around on the streets. Witnesses testified to the appearances of Geurin and how he was dressed, and that there was another man whom they were watching at the same time who was dressed in overralls that matched those appellant was said to be wearing. This man disappeared about the time Geurin was arrested. A deputy sheriff testified that he was informed about the possession of suspicious cotton and was watching two men, one of whom had the cotton samples, and the other of whom was standing around, both of whom were strangers. This officer said he knew everybody in Snyder and the farmers all around, and that he arrested the man with the cotton samples and the other disappeared. As above stated, he said that in his best judgment the man who disappeared was this appellant. The officer said he took charge of the truck on the streets of Snyder, which had some cotton hooks in it and various other articles. He put this truck in a garage and took a ticket for it. Without going into details this truck was shown by testimony to belong to this appellant. Appellant took the witness stand and testified he was at Clairemont on the morning of June 4th, and left there with Geurin, and that they went together to Sweetwater and that he went from Sweetwater down to Coleman County, and that he was not in Snyder. Appellant admitted that the truck taken in charge at Snyder by officer Bruton on the morning of the 5th of June was his truck, and that he had transferred it to a cotton buyer in Snyder by the name of Lee, who testified to the same facts. We are not able to agree with appellant's contention that the evidence is not sufficient to support the judgment. Geurin swore positively to a complete case against appellant. Geurin was an accomplice, but was sufficiently corroborated. *Page 240
The State's motion for rehearing is granted, the judgment of reversal is set aside, and the judgment of the trial court is now affirmed.
ON APPELLANT'S MOTION FOR REHEARING.