Appellant was tried for the theft of sixty-eight bushels of wheat, alleged to have been the property of Embry Finley, convicted, and his punishment assessed at confinement in the penitentiary for two years, from which judgment he appeals.
No exceptions were urged to the charge of the court, and no special charge requested, except one which was a peremptory instruction directing the jury to return a verdict of not guilty because of the insufficiency of the evidence. This peremptory request was refused by the court, and will be discussed later with reference to the sufficiency of the evidence.
Only two bills of exceptions appear in the record. It appears that the owner, Mr. Finley, did not haul the wheat in question himself, but had the appellant, his brother, and two other parties haul it in and deliver it at the elevators. The witness, J.B. Gurley, was the manager of one of the elevators, and Mr. Finley had told him that he was going to send wheat in, and while Gurley was testifying he was asked by the State if he bought any wheat from Finley, and, if so, how much; whereupon counsel for defendant asked permission to question the witness on this point, and it developed that the witness Gurley would *Page 413 answer that he only knew it was Finley's wheat from what the haulers said; and objected to this testimony on the ground that it would be hearsay. We do not believe the court committed error in permitting the witness to state that the parties who delivered the wheat to the elevator told him it was Finley's wheat. Finley had told him he was going to send the wheat in, and the statements of the haulers at the time they delivered the wheat were res gestae statements of their connection with the wheat, and, we think, properly admissible. While the witness, Finley, was testifying he was asked by the district attorney how much wheat he had sold to the Townsend elevator. He was unable to state the number of bushels, but gave the aggregate amount of money he received from the Townsend elevator, and the amount per bushel he received. This was objected to by counsel for appellant on the ground that it was not the proper way to prove the number of bushels of wheat he had sold to the Townsend elevator. We find no error in the action of the court in permitting this character of testimony. The witness may not have remembered the number of bushels delivered to the Townsend elevator, but if he knew the amount per bushel he received, and the total amount paid him for wheat delivered to that elevator it was pertinent proof which would enable the jury to determine the number of bushels by mathematical calculation; hence we find no error, as presented by appellant in his bill of exceptions number two.
The witness Finley testified that he had thrashed 1776 bushels of wheat, and that most of this wheat, something in the neighborhood of 1600 bushels, had been stored in a granary situated about two hundred yards from where appellant lived, the remainder of the wheat being kept at his, Finley's, house. He did not know the exact number of bushels of wheat placed in the granary, but estimated it to be somewhere in the neighborhood of 1600 bushels. He secured the services of the appellant and his brother and two other parties, by the name of Morris and Gassaway to haul and deliver the wheat from the granary in question to the two elevators at Happy, Texas. Upon checking up on his wheat he discovered a shortage, and an investigation resulted in developing the fact that on one day appellant was seen hauling wheat from the granary to one of the elevators at Happy, and on the next day was seen in the town of Canyon, sixteen or eighteen miles distant, with a load of wheat. The appellant's conduct with reference to the sale of the wheat in Canyon is not consistent with that of an honest man in relation either to his own property, or that in his possession rightfully. He sold this wheat in Canyon under an assumed name, taking a check payable to C.E. Clark; afterwards he drew a check payable to himself, purporting to be signed by C.E. Clark, for the purpose of transferring the money to his own account. We cannot agree with appellant's contention that the evidence is insufficient to support the verdict of guilty. His access to the wheat in the granary belonging to Finley is unquestioned, and his disappearance *Page 414 from home for a day and night at this particular time is unexplained; the shortage in the wheat as checked up by the owner, and the conduct of appellant in handling the wheat in the town of Canyon was sufficient, we think, to authorize the jury to find that the appellant had stolen the wheat from the owner Finley. This question was submitted to the jury fairly for their consideration, and they determined that issue in favor of the State, and against appellant. A proper charge on circumstantial evidence was submitted. We do not feel authorized to disturb the verdict and substitute our judgment for that of the jury upon an issue of fact.
The judgment of the trial court will be affirmed.
Affirmed.
ON REHEARING. June 1, 1921.