Conviction for theft of cattle; punishment, two years in the penitentiary.
There are no bills of exception in the record. We think the facts are sufficient. Appellant and one Caldwell hired Brandon and Hodges to haul a truck load of cattle for them to Fort Worth and there sell them. Brandon and Hodges went to appellant's place on the night of May 1, 1935, and being aided by appellant and Caldwell, they loaded into a truck nine head of cattle and took them to Fort Worth, where they were sold and the money was turned over to appellant by Mr. Brandon. Appellant did not take the stand, nor introduce any testimony. The cattle sold were branded Z Y on the left hip, which was the brand of Mr. J. E. Smith, the alleged owner, whose pasture lay near the home of appellant. Mr. Smith, who was an old man, testified that he lost a number of cattle along about the time these were taken. Appellant had a conversation with Mr. Thomas in regard to these cattle. He claimed to Mr. *Page 623 Thomas that he bought the cattle from Dick Smith, a son of Mr. J. E. Smith.
The court submitted the case to the jury under the law of circumstantial evidence, and there is no complaint of the charge in this regard. Appellant excepted to the charge for its failure to instruct the jury that he should be acquitted if he bought the cattle in question from Dick Smith. The charge appearing in the record before us contains a very definite instruction to the jury to acquit appellant if he did so purchase the animals from Dick Smith.
Appellant has another exception to the charge of the court, in substance, that the court should have told the jury that he should be acquitted unless the State had shown the falsity of the exculpatory statements made by appellant to Mr. Thomas above referred to. In our opinion the court did submit the substance of said proposition to the jury when he told them that if they believed Dick Smith sold appellant the cattle, or had a reasonable doubt thereof, they should acquit him.
Finding no error in the record, the judgment is affirmed.
Affirmed.
ON APPELLANT'S MOTION FOR REHEARING.