The appellant was tried and convicted of the offense of theft of property over the value of fifty ($50.00) dollars, and his punishment was assessed at confinement in the state penitentiary for a term of three years.
Appellant's only contention is that the testimony adduced by the State, which is wholly circumstantial, is insufficient to sustain his conviction. In order to determine this question we will briefly relate salient criminative facts upon which the State relied for conviction.
The testimony shows that on the night of December 31, 1934, soon after midnight someone entered the granary of Albert Wagley and took therefrom approximately one hundred bushels of oats. Wagley discovered the loss of his oats the next morning and immediately began an investigation with a view of apprehending the culprit. He found some human tracks and tracks of a truck with dual wheels on the rear axle. The tires on the inside wheels appeared to be old and worn, while the tires on the outside wheels appeared to be new. He also found where someone had struck a mesquite tree standing near his granary and scraped some bark from it. He further found that appellant sold one hundred fifty-two bushels of oats in the city of Fort Worth on the following day. Wagley testified that he measured the tires on appellant's truck with a stick and the measurements of the tires corresponded with the tracks made by a truck at his granary; that some four or five days later he took some bark from a bolt which protruded from a standard on the side of appellant's truck; that this bark was about two inches long and about one half inch wide; that Hill, the constable, fitted the bark into the place where it had *Page 90 been pulled from said tree and that it fitted exactly. Mr. Hill, the constable, testified that he took the bark from the top of a truck standing on Will Parrish's place in the town of Ranger; that they measured the piece of bark and in his judgment, according to the measurements, it corresponded with the place where bark had been knocked from the tree. This, in substance, constitutes the State's entire testimony upon which the conviction is based.
The appellant's defense was that of an alibi in support of which he proved by two disinterested persons that he loaded oats out of his own granary on to one of his trucks late in the afternoon of December 31, 1934, which he said he was preparing to haul to Fort Worth. He proved by another person, who owned and operated a cafe at Mineral Wells, that he, his son, and his son's wife came into the cafe at about eight thirty p. m. December 31st and bought some beer and sandwiches; that appellant took two bottles of beer with him and agreed to return the bottles which he did the next day and received a rebate. This witness further testified that he knew it was on December 31st because his beer license expired on that day and he did not have his place of business open on the 1st day of January. Mrs. Sandifer, who owned and ran a rooming house in the city of Fort Worth, testified that on the night of December 31st the appellant, his son, and his son's wife engaged a room at her place of business and immediately retired for the night; that the next morning about eight thirty they came down and left. The reason she remembered that it was the 31st of December was because they shot fireworks that night. Other testimony of like character was introduced by him which we deem unnecessary to relate here.
It is apparent that the State's case rests entirely upon the following circumstances: first, the sale of oats by the appellant upon January 1st; second, the tracks at Wagley's granary; and third, the piece of bark from a tree. The human tracks found about the granary were not by measurement, comparison, or otherwise identified as identical or similar to any tracks made by appellant, his son, or daughter-in-law. Hence the same are of no probative force. The tracks made by a truck, which according to measurements, were similar in size to those made by appellant's truck are also of little, if any, probative force inasmuch as the State's testimony shows that there were many trucks with dual wheels in that vicinity carrying tires of the same kind and size. The oats which appellant sold were not identified as any of the oats belonging to Wagley. With *Page 91 reference to the State's main and strongest criminative circumstance the witnesses differed as to where they found the piece of bark and how they determined it was knocked from a tree at Wagley's granary. Wagley testified that he took the bark from a protruding bolt on the side of appellant's truck which Hill, the constable, fitted into the place on the tree; while the constable testified that he took the piece of bark from the top of a truck at Will Parrish's place in the town of Ranger; that they measured it and in his best judgment, according to the measurements, it fitted into the knocked off place on the tree. This leads a searching mind into the realm of uncertainty rather than to a definite conclusion. It is a well established rule that the circumstances relied on by the State in order to warrant a conviction must not only coincide with, account for, and therefore render probable the guilt of the defendant; but they must exclude every reasonable hypothesis except that of the defendant's guilt. It is not enough that it appear that the offense has been committed, but there should be proof tending to establish that the party charged was the person who committed it, or was a participant in its commission to a degree of certainty stronger than a mere probability or strong suspicion. See Warren v. State,52 Tex. Crim. 218; Graves v. State, 43 S.W.2d 953; McGarry v. State, 200 S.W. 527; Moreno v. State, 21 S.W. 924.
Having reached the conclusion that the evidence does not measure up to the requirements of the law the judgment of the trial court is reversed and the cause is 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.