Offense, theft of chickens; punishment, one year and one day in the penitentiary.
The only matter presented to this court in this case is the sufficiency of the evidence to support the conviction.
The party complaining to have lost the chickens testified that he was acquainted with the appellant and lived about two miles east of him; that on or about the 25th day of April, 1930, he lost about 165 baby chickens, something like three weeks old; that they were white leghorn baby chickens, and some of them were runt chickens; that about five of those were missing and that one of them was a little one that had not grown at all and his head was as big as his body. He testified that he did not have any of these chickens marked in any way; that he had gotten the chickens from Chisholm's Hatchery and had them about three weeks when they were taken; that, when he missed them, he drove around over the country trying to locate them, and that he located them at appellant's home; that *Page 609 they were running around in the yard at the appellant's place with a lot of Rhode Island red chickens; that he recognized his chickens and then went to Brownfield and had a warrant sworn out to search the appellant's premises; that the sheriff and two others, one of whom was the sheriff of Yoakum county, went out with him; that he recognized about 152 chickens that belonged to him; that they brought away about 160, but seven or eight of them he did not claim.
This was the only evidence offered by the state as to the identity of the chickens claimed to have been lost by the complaining witness.
The appellant contended that he purchased the chickens from the Chisholm Hatchery on April 4th; that he purchased on that date from said hatchery, 300 baby chickens, 100 being Rhode Island reds and 200 being white leghorns; that the white leghorns were about two weeks old and the reds about one day old; that the chickens that the complainant claimed and took from his house had been in appellant's brooder house ever since he had gotten them. As to the purchase of 300 chickens from the hatchery on April 4th, the owners of the hatchery testified that on April 4th their books showed that the appellant did purchase 300 chickens from them and that their books showed and their recollection was that all of the 300 chickens purchased on that day by the appellant were Rhode Island reds. The appellant was corroborated by two witnesses to the fact that on April 4th he carried home with him from the hatchery 100 reds and 200 white leghorns; that the white leghorns were about two weeks old and that the reds were little baby chicks. Witnesses C. M. Roberts and his wife both testified that they lived 300 or 400 hundred yards from where the appellant lived; that on April 4th the appellant brought out to his place about 200 white leghorns which looked to be about two weeks old, and that they saw them on the morning of April 5th, and that they were positive about the date. Three or four other witnesses testified that they were at the appellant's home on the first Sunday in April; that they observed the appellant's chickens and saw that he had a large number of white leghorn chickens and had them in his pens around the brooder house. One of them testified that he was there when the sheriff came and got the chickens, and that they were the same chickens that he had seen there. In addition to said testimony of the other witnesses, Hugh Snodgrass testified that he lived in Yoakum county and lived two and a half miles from the appellant; that he was tax assessor of Yoakum county; that, in the early part of April, he was out electioneering, and about April 8th went by the appellant's home; that the appellant was out in the brooder house at work and that he went out to the brooder house to talk to him and observed appellant's chickens and remarked that they were a very thrifty bunch of chickens; that the big end of them were red, but that there was a bunch of white chickens in there; that the little house was full, and that he judged there *Page 610 were about 350; that he did not undertake to estimate what percentage of them were white, but that he remembered that there was a bunch of white chickens, and that they were mixed with the reds.
The state depended in this case for a conviction on circumstantial evidence, and the trial court so charged the jury. A conviction for theft based on circumstantial evidence will not be sustained if the testimony does not exclude every other reasonable hypothesis except that of the defendant's guilt. Branch's P. C., sec. 2485; Tollett v. State, 44 Tex. 95 [44 Tex. 95]; Hernandez v. State, 43 Tex.Crim. Rep., 63 S.W. 320; Yarbrough v. State, 69 Tex.Crim. Rep., 151 S.W. 545; Rios v. State, 69 Tex.Crim. Rep., 153 S.W. 308. The identity of the chickens that were alleged to have been stolen from the complaining witness was vital to the state's case, and the burden of proof was on the state to show beyond a reasonable doubt that the chickens found in appellant's possession were the chickens alleged to have been stolen. Hunt v. State, 89 Tex.Crim. Rep., 231 S.W. 775. The only evidence of the identity of the chickens alleged to have been stolen was that of the prosecuting witness. What circumstances will amount to proof can never be a matter of general definition. The legal test in a case of circumstantial evidence is the sufficiency of the evidence so that it will exclude every other reasonable hypothesis except that of defendant's guilt. It is possible that the chickens found in possession of appellant were the chickens lost by the complaining witness, but the evidence in this case in our opinion shows that it is equally as possible or even probable that they were not.
The evidence is not sufficient to authorize a conviction under the law of circumstantial evidence. The judgment is therefore reversed and the cause remanded.
Reversed and remanded.
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 STATE'S MOTION FOR REHEARING.