Upon original submission we were somewhat doubtful whether the evidence showed that the oats sold by appellant the day following the theft corresponded substantially with the quantity of oats stolen. The State's written argument in support of its motion for rehearing directs our attention to certain parts of the testimony which in large measure clears the question up.
Albert Wagley, the owner of the stolen oats, testified on direct examination that the amount of oats taken were "approximately one hundred bushels * * * I do not know the exact measurement of the amount of oats taken, but I knew what was put in there (oat bin) at the beginning * * *." *Page 92
On cross-examination he testified:
"I don't know exactly how many oats I had in the granary; they were loose; the granary was about ten by fourteen; I guessed the amount lost by the size of the hole. No, I did not have a thousand bushels, nor seven hundred bushels; it was a little rise of two hundred bushels; I guessed the amount lost to be about a hundred bushels; or maybe a little more; that is what I guessed when I first rode up there; I have figured out what was in there and what was lost, and a hundred and fifty bushels would be about right, it just left fifty bushels in the granary. Yes, I estimate that I lost a hundred and fifty bushels, by the hole in the oats.
Paul Wagley, a son of Albert Wagley, testified as follows regarding the oats stolen.
"* * * Three hundred and seventy-one bushels of oats were put into this bin originally, and one tenth was taken out for threshing; the one tenth came off of the three hundred and seventy-one bushels. Out of that, I suppose ninety acres of oats had been sowed; somewhere in that neighborhood; we tried to sow one bushel and a half to the acre. Before the oats were stolen, about a hundred and seventy-five bushels were left, around that; after that, there was left about five or six inches deep on the floor, or about forty or fifty bushels; I figured up the amount of oats put in there, and the amount sowed, and determined the best I could about how many were taken; about a hundred and fifty bushels were taken."
The evidence mentioned seems to establish with reasonable certainty that about 150 bushels of oats were taken from the bin at the time of the theft. The evidence further shows that appellant sold in Fort Worth the day following the theft 152 bushels of oats. The conclusion is reasonable that the amount of oats stolen from Wagley and the amount sold by appellant was approximately the same. This circumstance was entitled to some weight with the jury in connection with other circumstances proven.
In regard to the effort to identify the truck which hauled the oats away by comparison of tracks, we say in passing that usually such evidence is unsatisfactory and inconclusive as are human tracks unless there be present some distinctive identifying marks. The fact that the tracks of the truck at the granary and the casing on appellant's truck corresponded in a general way was a circumstance to be considered by the jury, but in our judgment — as said in our original opinion — was without much probative force. For the latest expression on *Page 93 the subject, see Ennox v. State, No. 18,186, opinion of date May 13, 1936 (130 Tex.Crim. Rep.) in which many authorities are cited.
We now come to further consider a circumstance most strongly criminative against appellant, and which we believe was not given its due weight originally because we were under the impression that the State's evidence upon the point was in conflict. We are now lead to think the conflict was more apparent than real, and that the witnesses were referring to the same incident. The matter in mind is the fact of finding upon a truck which belonged to appellant a small piece of bark from a mesquite tree — an apparently insignificant circumstance — yet "trifles thin as air are * * * confirmations strong as proofs of holy writ" when properly proven and connected. The conclusion is inescapable that the truck employed to haul away the stolen oats, in turning near the granary passed under a leaning mesquite tree, and that some part of the truck cut into the tree seven or eight feet from the ground and scraped away a piece of bark. The evidence showed that a truck belonging to appellant had some bolts which protruded through the standards near the top of the bed of the truck, and a washer on one of these bolts was not level. For some reason — not disclosed from the record — as soon as Albert Wagley discovered the loss of his oats he went immediately to appellant's house in Ranger and there examined the casings on appellant's truck, and also discovered on one of the standard bolts a piece of bark from a tree. As we understand the record the bark was not taken by him then but was gotten later from the truck while it was standing on a street in Ranger, and at a time when Mr. Hill, the constable, was present, as was also Paul Wagley. Albert Wagley testified as follows about the bark:
"The tracks of the truck passed under a tree, and there was a piece of bark gone from that tree and Mr. Hill fitted that piece of bark (which was taken from appellant's truck) into the place on the tree, and it did fit into the place."
He further testified that he took a piece of bark from the front standard of appellant's truck and that was the piece of bark that fit in the tree that the truck passed under. On cross-examination he testified:
"This piece of bark was found on the truck — a piece of bark peeled from a tree at my place; the piece of bark was about two inches long and a little better than a half inch wide. * * * I found this piece of bark on a truck at Ranger. No, *Page 94 it was not on the main street; I saw it there, but when we tookit off it was parked across the street from the feed store."
Mr. Hill testified on direct examination:
"We found a piece of mesquite limb on that truck, and took it off; we went to Mr. Wagley's house on Sunday following; I went to Mr. Wagley's house on Sunday, and looked at the tracks at the barn, and also looked at a stooping tree there; eight feet above the ground there was a hole cut into the tree, we measured that piece of bark there, and it fit in the place where it was cut into the tree exactly, as near as I could tell. I did not look at this truck at the defendant' house; I looked at it there on East Main and Oak Streets, and thought that he lived there at the time, I did not know any different, it was sixty feet from Oak Street, on Main."
On cross-examination, he said:
"This bark was up on the top, and I stood on the curb and took it off and gave it to Mr. Wagley we measured it, and it fit that place."
Paul Wagley testified upon the point at issue on direct examination as follows:
"I examined the tree where a truck had gone under and knocked off some of the bark; I saw him (Mr. Hill) take that piece of bark off of the truck. With reference to the standards on the truck, and whether the front bolt was more blunt than the back bolt — it appeared to be long where it scraped. I saw them measure the piece of bark that was pulled off of that tree, and saw it put back in place and it fit."
On cross-examination he said:
"That piece of bark that was knocked off the mesquite tree, I judge it was knocked off about seven feet from the ground. Yes, I examined the truck that we saw in Ranger; the top of the sideboard was seven feet high; these bolts were just a short distance from the top; an inch and a half would be my guess; * * *"
This telltale bark seems to point unerringly to the fact that it was appellant's truck that hauled the stolen oats away from the granary, and the fact that on the next day appellant sold a load of oats corresponding in amount with those stolen points the finger of guilt at appellant so conclusively that we believe it excludes every reasonable hypothesis save that of appellant's guilt.
There is one other circumstance proven by the State that is difficult to explain in consonance with appellant's innocence. "It is elementary that efforts of a defendant to manufacture *Page 95 evidence, or to procure false testimony * * * may be shown as indicating a consciousness of guilt." 18 Tex. Jur., Sec. 26, P. 45; Faulkner v. State, 104 Tex.Crim. Rep.,283 S.W. 824; Springer v. State, 102 Tex.Crim. Rep.,278 S.W. 1104; Hodges v. State, 108 Tex.Crim. Rep.,299 S.W. 907. Application of the foregoing principle here comes from the circumstance testified to by the witness Carwile to the effect that after appellant had been arrested and given bond upon the charge of stealing the oats from Mr. Wagley appellant made an effort to get witness to swear that he saw appellant buy this grain, and that witness refused to so swear because he had not seen appellant buy any oats. Upon being asked if appellant was trying to get witness to swear a lie he answered that if he had sworn as appellant desired him to, it would have been a lie.
Upon a further examination and closer analysis of the facts we have concluded that we were in error in originally ordering a reversal, hence the State's motion for rehearing is granted, the judgment of reversal is set aside, and the judgment of the trial court is now affirmed.
Affirmed.
ON DEFENDANT'S MOTION FOR REHEARING.