The offense is theft of sheep; the punishment, confinement in the penitentiary for two years. *Page 32
Ricardo Real was employed on the ranch of J. B. Biedler. Real testified that on the 24th of June, 1939, he saw appellant in one of Mr. Biedler's pastures with a lamb or sheep in his hands. The witness testified: "He (appellant) was carrying the animal by the two hind feet and two front feet in each hand and he was carrying the animal in front of him. He was carrying the animal just like this (witness demonstrating by holding his hands out in front of him) and while he was carrying it that way the head was hanging on the side of the animal. He was about ten feet from the fence when I first saw him with that animal, and he was nearing the fence, and I saw him get to the fence, and his wife took it and she laid it down; she took hold of the sheep and put in on the ground near the car, and Villareal then crossed the fence and then he lifted the animal and put in inside the car." The witness testified further that the animal appeared to be dead. Again, he testified that after appellant entered the car he and his wife drove away.
Mr. Biedler testified that he did not give appellant permission to take the sheep.
Shortly after the theft, the sheriff, Mr. Biedler and Real went to the place from which the sheep had been removed and found a pool of blood and some entrails. There were foot prints leading from the pool of blood to the fence. Outside of the fence there were automobile tracks. The sheriff testified, in parts, as follows: "The tires I found on Sergeant Villareal's (referring to appellant) car had the same type of marks with the tracks we saw on the Macie Road out there. I don't know what that tread is commonly called, but I think it is called a rib thread. It had four marks and we had found four marks on the ground out there."
Appellant did not testify and introduced no witnesses.
The court instructed the jury in substance to acquit appellant if they believed the sheep was dead at the time of the alleged taking. We think the jury were warranted in concluding that appellant butchered the sheep and carried it away. Hence we deem the evidence sufficient to support the conviction.
The judgment is 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. *Page 33