Upon re-examination of the evidence, we have reached the conclusion that it is not sufficient to support the conviction.
Perhaps the most tangible fact against the appellant is the fact that while he had access to the wheat of Finley, he sold upon his own account sixty-eight bushels at Canyon and acted in relation thereto in a maner justly bringing him under the suspicion of wrong-doing.
The evidence is wholly circumstantial. To be sufficient, it must reveal, beyond a reasonable doubt, that Finley's wheat was fraudulently taken and that the appellant was the guilty agent. The taking is not satisfactorily disclosed. Finley obtained from the thrasher a quantity of wheat, which, according to the thrasher's weights exhibited to Finley amounted to 1776 bushels. A part was left at his home and a part put in the granary. No weights or measurements were made as to either amount, but Finley, according to his estimate or guess, puts the amount in the granary at 1600 bushels. He sold 1169 bushels to Neff, 439 1/2 bushels to Townsend, and 32 2-3 bushels to Gasaway. Whether that sold to Gasaway was from the granary or the home of Finley is not disclosed The evidence shows that there was probably a shrinkage in weight during the time the wheat remained in the granary but the amount of the shrinkage is not given.
Four persons, including the appellant, were employed by Finley to haul his wheat from the granary to the elevator. He saw none of it loaded or weighed. Neither of these persons were used as witnesses.
The persons at the elevator testified that certain wheat was received from each of the persons, but the amount delivered by the appellant and the others who hauled the wheat repectively was not shown.
Finley's testimony is to the effect that his means of knowing that there was a shortage was by the variation between the thrasher weights and the elevator weights as reported to him. *Page 415
There is nothing in the record describing the character of the wheat which appellant sold such as to identify it as a part of that belonging to Finley. No reason is given for the failure to use the witnesses and persons who had access to Finley's granary, nor is it shown that the granary was not accessible to others. It is not competent to use against appellant the inference that may be drawn from the absence of testimony available to the State, and which, if favorable, it would be to the interest of the State to introduce. Wilkie v. State, 83 Tex.Crim. Rep., 203 S.W. Rep., 1091; Taylor v. State, 87 Tex.Crim. Rep., 221 S.W. Rep., 614; Parrish v. State, 85 Tex.Crim. Rep., 209 S.W. Rep., 681.
If it be assumed that Finley had correctly guessed the number of bushels placed in his granary, it cannot be inferred that the appellant got the wheat he sold at Canyon from the granary for the reason that the amount admittedly sold by Finley exceeds the amount that he put in his granary. Even if the shortage were established, there would arise from the testimony and absence of testimony, several hypotheses consistent with the innocence of the appellant; for example, a discrepancy might have resulted from the loss of weight or from the difference in the operation of the scales used at the various places and from the uncertainty as to how much wheat was taken by others having access thereto. The identity of the wheat found in the possession of the appellant with the stolen property cannot be assumed.
"There must be legal and competent evidence pertienetly identifying the defendant with the transaction constituting the offense charged against him." (Branch's Ann. Penal Code, Sec. 1877).
No inference sufficient to support the conviction can be drawn from the fact that appellant was in possession of wheat at Canyon and was guilty of suspicious conduct relating thereto, in the absence of other evidence excluding the theory arising from the fact that Finley lost no wheat, or assuming that he did, it was the act of others whose opportunity to take it was equal to that of appellant, which theory the State, having means to combat, has failed to disapprove.
The motion for rehearing is granted, the affirmance set aside, and the judgment of the trial court is now reversed and the cause remanded.
Reversed and remanded. *Page 416