The offense is theft of sheep; the punishment, confinement in the penitentiary for two years.
The state relied upon circumstantial evidence. We are unable to agree with appellant's contention that the evidence fails to meet the measure of the law.
J. H. Bruce, the injured party, and John Mazurek, the brother of appellant, owned adjoining pastures. On May 21, *Page 42 1931, Mr. Bruce had 14 head of sheep in a field which was separated from John Mazurek's pasture by a wire fence. Late in the evening of May 21st, Mr. Bruce's son, who had gone after the sheep returned with only 13 head. One of these animals had been shot in the face with small shot, indicating that a shotgun had been used. Early the next morning Mr. Bruce went to the place where his sheep had been ranging, and found that a sheep had been put over the fence into John Mazurek's pasture. There was some wool on the wire and blood on the ground. After the sheriff had been called upon, a further investigation was made. A short distance from the fence Mr. Bruce and the officers found where a sheep had been dressed. The hide had been stripped down seven or eight times. Placing the strips together, Mr. Bruce's brand was plainly visible. It appeared that the animal had been dressed under a live oak tree. Signs on the tree indicated that a rope had been put over a limb. There was blood on the ground under the tree. The hide was discovered about 45 steps from where the animal had been dressed. The entrails and feet were found under a cedar bush 20 steps away. The place where the animal had been dressed was about 250 steps from that part of the fence where the wool was found on the wire. Near the place where the animal had been put through the fence the parties found some small shot in a fence post. Twelve steps away they discovered a 410 empty shotgun cartridge. The parties failed to find the head of the sheep. A witness who was shearing sheep for Mr. Bruce met appellant on the afternoon of May 21, 1931, coming from the direction of the place where the sheep had been butchered. Appellant was about half a mile from the place where blood was discovered on the fence. He was going toward John Mazurek's house. At this juncture we quote the testimony of the witness as follows: "I was pretty close to him, I guess, before he saw me. He had something on his back; it looked like a sheep to me; he also had a gun and a rope; that gun looked like a shotgun, a 410, — looked like to me; it was a small shotgun. I do not know what he said when I met him — we just were talking; he said 'I got me a fine buck' — something like that. I went back to the house with him, John Mazurek's house. When I got over to John Mazurek's house with Kasper, there was a boy and a girl there, might have been two boys, I do not know, might have been some of John Mazurek's children. I think they asked him: did you get a turkey, — something like that, and he said no — he says, I did not go after a turkey — went after a mutton, something like that."
The witness testified, further, that he had handled sheep *Page 43 and goats all his life and believed he knew "sheep meat from deer meat." He said: "The meat Kasper Mazurek had on his shoulder I took to be sheep meat." He said, further, that the rope appellant was carrying was long. It appears from the testimony that appellant hung the meat on the yard fence at his brother's house. The witness testified that appellant was not trying to hide the meat when he saw him. He said, further, that "the hide nor the head nor the feet" were on the animal appellant was carrying. Touching the amount of meat that appellant had, the witness testified as follows: "As to how much meat he had, — well he had the whole thing. Yes, I mean he had the four quarters."
John Mazurek owned sheep which ranged in his pasture.
The day after the theft appellant was arrested and carried to John Mazurek's house. He was kept outside while the officers went into the house. John Mazurek's young son, upon seeing the officers, went toward the barn with something in a sack. The officers later went to the barn and found a sack of "sheep meat."
The judgment is affirmed.
Affirmed.
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.
ON MOTION FOR REHEARING.