Conviction for burglary; punishment, five years in the penitentiary.
Mr. Graham lived out about eight miles from Brownwood in Brown County. About dark on the 12th of August, 1933, he left his home. He returned about ten P. M. and found that his house had been opened and a quantity of bed-clothing, and preserved and canned fruit, etc., had been stolen. Upon investigation he found about one hundred yards from his house a place where a car had stopped. There had been a very recent rain, and the tracks of the car, and of three men around the car and between the car and his house were observed. One of the tracks was made by a small shoe about a No. 6, and the others were much larger, being apparently made by shoes No. 9 or No. 10 size. Graham got a flash light and observed carefully the tracks of the car, which seemed to be made by almost smooth Goodyear tires on the rear wheels, and one of them was almost flat. He got some of his neighbors and they followed the car tracks from the place where it had been parked, — and to which the men's tracks went, from his house, — down a road to a gate leading into the place of this appellant. They went to town and got a search warrant and came back. They found no one at appellant's place, but not long after they got there appellant and one Alexander drove up. They were traveling in a 1926 Ford, which had on it three smooth tread Goodyear tires, and the right front tire was flat. He testified that said parties same to appellant's house in said car something after twelve o'clock at night. He further testified that the radiator of the car was boiling and the car was hot. Witness and his posse then back-tracked the Ford car in which appellant and Alexander drove to appellant's place, following the tracks through appellant's farm and on until they came to the house of Andy Page, some five or six miles from the home of appellant. Appellant *Page 146 lived about a mile or a mile and a half from Mr. Graham's home, the latter place being six or seven miles from the Page residence. When they arrived at Page's place he was on a bed in front of his house. On that bed and over Page was a blanket which had come out of Graham's house, and the lower part of a pair of pajamas was under a mattress of that bed which came also from Graham's place. In and around Page's house they found a quilt and a quantity of fruit and canned goods, also clothing belonging to Graham's children, and all of which Mr. Graham identified. It was in testimony that Page and appellant were large men, wearing shoes Nos. 9 or 10 in size, and that Alexander was a small man, wearing about a No. 6 shoe. The State also introduced a man named Hunt who testified that on the late afternoon of August 12, 1933, he was at the home of Andy Page, and was induced by Page and Alexander to take them over to the home of this appellant. He said they reached appellant's place a little before sundown. Witness observed Alexander, Page and appellant in conversation together at the front gate. Witness then left appellant's place accompanied by Alexander and Page. They drove down to a bridge about one or two hundred yards from Mr. Graham's house. Here Alexander and Page got out of the car and witness went on home. He testified that it was raining before they left appellant's house. Asked about the conditions of the casings on his car, Hunt said they were practically new.
Mr. Graham was corroborated by Mr. Avinger who testified that he saw the tracks of three men near Gpaham's house; that one set of tracks was made by a No. 6 or No. 7 shoe, and the other two sets by men who wore No. 9 or No. 10 size shoes; that these tracks led from Mr. Graham's house down toward a bridge. He also testified that the tracks of the car they followed were made by tires worn smooth, and that one of the tires showed to be of very low air pressure. He said they picked up these car tracks between the bridge and the Graham house, and that they tracked them up to appellant's place. Mr. Avinger also testified that he was at appellant's house when appellant and Alexander came up in a model T Ford about midnight. He observed the old worn out casings on the car, and that the right front tire was flat. There had been a shower of rain that day, and he said they back-tracked these car tracks across a field and on to the Page house. This witness was very positive that the tracks they followed from appellant's house six or seven miles to the Page house were made by the *Page 147 car occupied by appellant and Alexander. Mr. Avinger testified that the shoes worn by appellant were No. 9 or No. 10, and that Page wore about the same size, and that Alexander wore a No. 6 or 7. This witness also testified that the car in which appellant and Alexander drove up to appellant's house about midnight was the same car that made the tracks down near the Graham house on the night of the burglary.
We have read with interest the able brief of appellant's counsel, but are not quite able to agree with him that the many authorities cited, in which the cogency and admissibility of evidence of tracks is discussed, warrant the conclusion that the testimony here is not sufficient under the law. If the only question here was the sufficiency of the tracks of the men near the Graham house, we might be inclined to agree with appellant.
The real probative force of the human tracks near Mr. Graham's house went to show that there were three different men engaged in the burglary and approximately the sizes of the shoes that they wore. The car tracks as followed by the witnesses from the Graham house to that of appellant, and the back-tracking of the car occupied by appellant and Alexander from the appellant's house back to the house of Page, where was found more than one hundred cans of fruits and vegetables belonging to Mr. Graham, together with bed-clothing and personal clothing which had been stolen that night, — seems to present a very strong chain of circumstances. We have appellant and Alexander coming in to the appellant's house after midnight. They are driving a model T Ford with smooth Goodyear casings, one of which is flat or almost flat, — making tracks fitting the exact description of the car tracks observed at Mr. Graham's. From appellant's house to Page's house was about six miles, and the car was back-tracked from appellant's house to the home of Page where the stolen property was found. When Alexander and appellant reached the latter's house that night the radiator was boiling, showing that the car had been driven some distance. Late that afternoon at appellant's house, these same three men, appellant, Alexander and Page, were in consultation, after which Alexander and Page were driven by Hunt over in the immediate vicinity of Mr. Graham's house, where they got out of the car. The conclusion seems inescapable that appellant came later in his car and joined the other two, and that the burglary was committed by the three.
Finding no error in the record, the judgment will be affirmed.
Affirmed. *Page 148
ON MOTION FOR REHEARING.