The sufficiency of the evidence is the only question raised by appellant in his motion for a rehearing. The evidence was circumstantial. Its sufficiency, in the first instance, is a question for the jury, and the duty of this Court, in its reviewing capacity, is to determine whether there be any evidence in the record upon which the verdict might have foundation.
Appellant, a negro preacher, lived near Jane Thomas, the owner of the alleged stolen hogs. We would conclude from the record, that the hogs of the various members of that community were well known to the neighbors. The alleged stolen hogs — a sow and five yearling shoats, had been raised at the home of Jane Thomas. They disappeared. No sort of reason for such disappearance seems at hand except that about the same time there appeared in the appellant's meat box the hams, shoulders, and middlings of one large hog and five smaller ones. The hogs of Jane Thomas were all earmarked, and when the investigators asked appellant to produce the ears of the hogs slaughtered by him, his explanation of his failure to do so was *Page 125 that they had eaten the ears first. On Monday after Jane Thomas' hogs disappeared, appellant told George Lewis, a neighbor, that he, appellant, was being talked of in that neighborhood as having taken said hogs. Just why he should have told Lewis this is not shown. Lewis said that he had not heard it, but it is well known that the guilty conscience needs no accuser, and finds a pursuer in every shadow; an officer in every approaching stranger.
Appellant's only explanation as to the meat found in his house, made at the time, was that some two years before that time, he had lost two sows, and that he found one of them with a bunch of shoats, and had driven them home and slaughtered them. As said sows were shown by the neighbors to have been of a totally different color from the color of the hog-hair found at the place where appellant said he slaughtered said hogs. This place was at appellant's home. Large quantities of hog hair having the same general characteristics as the hair on the lost hogs of Jane Thomas, was found in the yard of appellant, most of it being in the corner of the L on appellant's dwelling. When asked why he should kill hogs in such a private place, he said the wind was blowing hard. The fact of appellant's bringing home unmarked wild hogs, and there slaughtering them; the early consumption of their ears, and the color, age, and description of said hogs, was certainly most material evidence.
Appellant had a family, not one of whom was placed on the witness stand to explain any of these strong circumstances against him. He, himself, did not testify. The old negro woman swore that the meat found in appellant's place was from her hogs. She said she could identify it by the hair, and in other ways. Her ability to make such identification may be questioned, but the circumstances detailed and offered in evidence seem to us to justify the jury in concluding to a reasonable and moral certainty that appellant, and no other person, took said hogs. Appellant cites authorities. We have examined all of them: Watson v. State, 82 S.W. Rep., 514, and Noble v. State, 192 S.W. Rep., 1074, are cases of hog theft. In the Watson case the accused introduced cogent evidence, casting doubt on the identity of the meat. The only evidence of the guilt of the accused in that case was the owner's attempt to identify the meat. The man who sold the alleged stolen hog to said owner, testified that he thought the hog so sold by him was not as large as the one from which the meat found in the appellant's possession came. In the Noble case, it appeared to be established that the alleged stolen hog was dead before the accused had any connection therewith, this Court indicating in its opinion that in such case a charge of hog theft was not applicable where the theft was only of pork. The great preponderance of the evidence in that case also showed an innocent connection of accused with the hog. The Williams case, 84 Tex.Crim. Rep., 208 S.W. Rep., 522, was a cotton-seed theft, almost the sole evidence against the accused being the testimony of the alleged owner *Page 126 and his son, identifying the seed as theirs by reason of the presence of cane seed and red dirt therein. It was shown by the sheriff, on behalf of appellant, that he had cane seed in his bin, and that he had hauled the seed through red dirt before they reached the place where the supposed identification took place. This nullified the evidence of the State. These are the strongest authorities cited by appellant, and we do not think they militate against the conclusion in this case.
We find ourselves still unable to conclude that this judgment was without evidence to support it, and the motion for rehearing is overruled.
Overruled.