(dissenting).
In view of the errors which I believe to be in the opinion approved by my associates granting the state’s motion for rehearing and affirming the judgment, I wish to reiterate the statements made in the original opinion with proper emphasis. Preliminary to doing so, I wish to call attention to the record which wholly fails to fix any place where the embezzlement could be fastened upon appellant. It is not shown to be near Amarillo and it is not shown to be near Abilene, yet there could be no contention that it took place elsewhere. Proof of the value of the property should be made at the place where the embezzlement took place and not in the county which obtained jurisdiction because the property was transported into it for sale. I do not believe there is a contrary holding of this court and my associates cite none.
*294Even if I should be mistaken in this view, all of the proof in this case as to value is of second-hand lumber at San Angelo and points west. Nothing refers to the market value of the lumber at Abilene or Amarillo, or at Winters. Reliance for evidence, if any, showing the value of these trusses must be had upon the testimony of Joe Tharp, a contractor, who testified that the lumber in question was worth eight cents a foot as second-hand lumber. He then said: “The type of lumber that was in those trusses at that time would have cost from 12 to 14 cents a foot.” This could have had reference to nothing but new lumber of that type. He also testified that he was paying 8 cents a foot for second-hand lumber in building a Negro school, at another town several miles distant. At no time did he give a value of the trusses as such. He gave no estimate of the cost of dismantling the trusses. The only witnesses who did said that it would cost more than the value of the lumber. We quote further from Mr. Tharp on the value of the trusses. “Those trusses could be used for bleacher supports. I haven’t had any demand for it. Offhand I don’t know that they could be sold for anything.” No other witness gave any evidence in the case whatsoever that can be a basis for the finding of the value of the trusses as such.
I cannot agree that the evidence would authorize a jury to find that this lumber, if dismantled, would be worth 12 to 14 cents a foot and that the value of it in the trusses would be 8 cents per foot. I construe the evidence of Tharp to be that as second-hand lumber out of the trusses it would be worth 8 cents a. foot. This witness did say on cross-examination: “Each of those trusses would be worth about $40.00.” But on further cross-examination he said: “Offhand I don’t know that they could be sold for anything.” This statement completely nullifies the first, in my opinion, and shows that he was at all times valuing the quantity of lumber in the trusses but not valuing the trusses. He never spoke in terms of market value. What an article “could be sold for” under some undisclosed condition does not establish market value. In the stress of emergencies, with which we are all familiar, many things during that time sold for prices far above market values.
Even if the state proves the value of the lumber, the cost of dismantling the trusses and thus calculates the value, I would challenge the sufficiency of such evidence to show the market value of the article alleged in the indictment. It would be like alleging theft of a raw material which admittedly has *295no market value and then to construct a value by showing what some manufactured article could be sold for and deduct the cost of manufacturing it to arrive at the cost of the raw material. A good sound hickory log may have no market value at Amarillo or Abilene, yet a genius may make it into hammer handles which would sell readily at a nice profit. Such method of proving market value would not be acceptable in a civil case. This provokes the question: “Should we take a man’s liberty on less testimony than is required to take his money?”
George Briley, a witness in behalf of the state, had attempted to sell the trusses at Winters, in the county where the trial was had, and found no buyer for them. This state’s witness said: “I wasn’t able to find any one to buy the trusses at any price and wasn’t able to get any kind of a bid or offer from anybody.”
John Lynn Scott, an architect employed by the school district, made the positive statement that the lumber in the trusses, even if all of it were salvaged, would not be sufficient to pay the labor which he calculated would be required to take the trusses apart. He tried to give them to the contractor who built the building and he would not take them apart and use the material as a gift. This was at San Angelo.
On the other hand, the defendant offered positive proof by the witness Earl Thorp, a carpenter, who said he did not know of any market value for the trusses at San Angelo and that the lumber recoverable would not be worth what it would cost to tear the trusses up and put the lumber in second-hand condition. In his opinion one of the trusses had no value. He qualified himself to testify to these facts.
The state has an exhibit showing a picture of the trusses. They are constructed of lumber cut into short pieces of irregular lengths, which are nailed and bolted together. This exhibit is common-sense and forceful evidence in support of that given by appellant’s witnesses.
I think my associates are also a little insecure in their conclusion that the trusses were secluded by the appellant near Abilene, and only brought out after he learned that he was being investigated. It is an extreme construction of the evidence which I am not willing to give. Mr. T. D. Hill, who was secretary of the board, testified on cross-examination that ap*296pellant had authority to handle the lumber as he saw fit, as stated fully in the original opinion. The state sought to meet this by asking board members if the board gave him specific authority to handle the lumber as he did. This was not necessary as he had general authority to do it.
Following this, other members of the school board, testifying in behalf of the state, said that they had not authorized Mr. Larkin to dispose of this lumber or to store it in his bam near Abilene. Such evidence must be viewed as the construction which the witnesses chose to give to the authority which they had voted to him and is contrary to the foregoing language of the order. Their opinion of the contract can not be utilized to authorize the jury to find contrary to its plain terms.
I am firm in the conclusion that the appellant had authority to store and dispose of the lumber; that there is no evidence at any time that he ever used one foot of it for his own purposes, and only a suspicious circumstance that he intended to do so. In order to support the conviction evidence should be of more certain and positive nature. Man’s liberty is not so cheap that it may be taken away from him on mere suspicious circumstances.
Appellant has filed a motion to have the mandate issued reversing his case. This raises quite a complicated question. I cannot be certain at this time about the merits of the motion. The majority opinion overlooks the motion entirely and I think it should be disposed of before action is taken that must be construed to be contrary. I most earnestly register my dissent. Whether this man is guilty or not, the evidence against him has not been admitted in accordance with the rules.