
    BAILEY et al. v. STATE.
    (No. 7505.)
    (Court of Criminal Appeals of Texas.
    March 28, 1923.)
    Burglary <&wkey;4l (I)— Evidence held insufficient to sustain conviction.
    In a prosecution for burglary, testimony by a state’s witness that he had met appellants on a particular night, and that they had then told him they were about to commit the alleged offense, and that he waited with one of their party while the others committed the offense, and that they thereafter proceeded on together for a short distance, all of which took place some considerable time before the trial, held incredible, and insufficient to sustain a conviction. \
    Appeal from District Court, San Augustine County; V. H. Stark, Judge.
    Dewitt Bailey and Hammon Harvey were convicted of burglary, and they appeal.
    Reversed and remanded.
    D. M. Short & Sons, of Center, for appellants.
    R. G. Storey, Asst. Atty. Gen., for the State.
   DATTIMORE, J.

Appellants were convicted in the district court of San Augustine county of burglary, and given two years in the penitentiary.

This is one of the most remarkable and almost incredible cases which has come before this court. Mr. Hines owned a farm, on which was a barn. The barn had a loft in which, among other things, Mr. Hines had stored a number of cans of vegetables put up' by him the preceding season. The general structure of the barn is stated as being about 30 by 32 feet with a hall through the center 9 feet wide, one side of the barn being cut up into crib rooms and the other side into stalls, there being two doors swung together and latched in the middle. Mr. Hines testified in July, 1922, that he closed said doors to the barn on the night of May 2, 1921, fastening them with a 1x4 latch and also by tying a rope in some manner so it would - hold the doors closed. He testified with no definite recollection, but was sure that he closed the doors on the night in question, because it was his custom to close them and fasten them every night. He had a son 17 years of age, a couple of practically grown daughters, a tenant who lived not far away, and a wife. None of these named were used as witnesses by the state. Testifying as to the occasion in question, Mr. Hines did not state whether the doors to his bam were open on the morning of May 3d or not., He said that sometime prior to this date he had observed that he still had about half the number of cans-that had been pu,t up, and that not long after said date he had occasion to observe again, and there was only one can left. He also-said that they had put up something over 100-cans. Thus appears that, some time between-the occasion a 'few days before May 2d, when Mr. Hines noticed that about half the cans were on hand, and the date, a short time-after May 2d, when he noticed that but one can was left, by the agency of some person "approximately 50 cans of .vegetables had been taken from said barn loft.

One J. A. Griffis was the only state witness testifying to any direct criminating fact. The story told by Griffis is remarkable. He-swore that he would not be positive about the date, but that he saw these two appellants one night about 12 or 1 o’clock sitting, in a ditch right on the road in front of Mr.. Hines’ barn; that he asked them what they were doing out there at that time of night-on the road. His testimony at this point is as follows:

“Dewitt just up and told me — says: ‘We are going to steal Jim Hines’ chickens.’ I stood there and talked with them some little bit, and while I was standing there Mr. Harvey’s boy came out of the pasture. They said he was: down there hunting some chickens that roosted down on the branch. He came on up there, and they asked him if he couldn’t find any, and he said he couldn’t, and Mr. Harvey then said there were" some roosting in the barn; that he could get them; that he knowed where they were. And Mr. Harvey and Mr. Bailey walked over — walked off and left me and the-boy standing there on the road, and they went to the barn, and was gone some little bit, and then come back. They didn’t have any chickens. When they got up about as close to me as. you are [counsel], I guess, I saw Dewitt had something in his arms, and he said: ‘We didn’t find any chickens, but we give his fruit hell.’" He had cans in his arms, with something in them. They put them in a sack when they got out to where me and Mr. Harvey’s boy was-standing — put them in a tow sack. * * * That was the first time I had seen them that night, and I left them after going about a half a mile with them. * * * This was a little over one year ago. * * * Mr. Mitchell lived about one mile from where Mr. Hines’ barn was located. * * * It was right about 12 o’clock when I left Mr. Mitchell’s. * * * In going from Mr. Mitchell’s I traveled in-the road by Mr. Hines’ house. * * * This barn is located directly on the public road that I was traveling. * * * I don’t suppose it was over 5 minutes from the time I stopped there and asked these parties what they were doing there at that time of night, and they told me they were out for the purpose of getting some chickens from Mr. Hines until this boy appeared. * * * This boy and I didn’t talk about anything particularly while they were gone; not anything that I recollect. * * * I stayed right where I was when I walked np there while these parties were gone. * * * When they got to the barn door, me and the boy sat down on the road, and I didn’t see them go in any further than the gate. * * * They were gone something like 10 or 15 minutes. * * * These parties were sitting down in the ditch, with their backs against the side of the ditch — just sitting there when I saw them. * * * I said We all went together about a half, a mile. We traveled south toward town. * * * We crossed Irish Bayou. We got on the railroad and crossed the branch; that is where we separated. * * * I watched them from the time they came out of the barn until they came back to me. It was about 150 feet. Dewitt Bailey had the cans in his arms. I didn’t count the number of cans he had. * * * It looked like Dewitt Bailey had 6 or 8 cans, something like that. I don’t recollect that this ‘ other man had any. I did not hear any noise up there like somebody opening the door of that barn while these people were up that way, nor did I hear any noise like they were disturbing any cattle or horses, or run over anything else in the barn. I never saw any light in the barn.”

No witnesses were introduced by the state except Mr. Hines, who testified as to his ownership of the barn and the loss of his vegetables, and Griffis who testified at length.

The indictment was returned in February, 1922, and the case was tried in July following, and the conviction rests upon the above testimony. The testimony appears to our minds to be altogether unreasonable and such as to make us unwilling to incarcerate two citizens of this state in thé penitentiary upon same. It appears that without any' effort at concealment and without reluctance, if the witness Griffis tells the truth, appellants unblushingly told him that they were sitting by the roadside in front of Mr. Hines’ bám on the night in question for the expressed purpose of stealing his chickens; that he sat down and talked with them and remained with them apparently to see the outcome of their venture; that when the boy of one of the appellants came from an exploration down in the pasture and reported he could not find any chickens roosting down there, appellants announced their intention of going up to Mr. Hines’ barn and stealing some of his chickens. The witness, calmly and on terms of friendly intimacy sat, down with the son of one of the appellants and waited or watched while they entered the lot and were gone 10 or 15 minutes. He heard no noises and saw nothing to indicate an entry into the barn on their part. He testifies that when they returned one of them had a few cans, the number given above, and that the other had nothing. This certainly is a tremendous variance from the testimony of Mr. Hines that he lost about 50 cans. Said witness further stated that the defendants openly and frankly told him that they had gotten some of Mr. Hines’ fruit, and that they then put the cans in a tow sack, and that he accompanied them down the road about half a mile and they separated. The record is bare of any showing that this witness made complaint or told anyone of his knowledge of or connection with the transaction at any time.

We have no time nor inclination to discuss the legal attitude of one who knowingly conceals a crime which was committed in his presence by parties whom he well knew, and with whom he went away from the scene of the crime. We content ourselves with repeating that such testimony as we have above detailed is sufficient to stagger credulity. We might further observe that, in addition to the fact that the above is the only testimony for the state, appellants introduced in their behalf three young men, who testified that some time in the spring of 1921 they were coming from the Bug Tussel church at night, and at Irish Bayou they saw the light of a fire, and upon going to it they found appellants, who were there fishing. Shortly afterward, each of the three young men testified, state witness Griffis appeared at the fire with a number of cans which he proceeded to' open with his knife, and upon finding that they contained vegetables that Griffis disgustedly said that it was just his luck, that he thought it was peaches, and that he never stole anything in his life that was worth anything; that Griffis cut open the rest of the cans and pitched them in the' water; and pulled out a pistol and shot at the cans, and then got up and left.

We do not like to reverse cases because of the lack of sufficient testimony, but the condition of this record leaves our minds in such an attitude toward the proposition of the state having sufficiently proven these appellants guilty of burglary by competent and credible witnesses, as that we are unwilling to allow the judgment to stand.

For the reason mentioned, the judgment is reversed, and the cause remanded. 
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