
    SMITH v. STATE.
    (Court of Criminal Appeals of Texas.
    Feb. 5, 1913.)
    LaRcent (§ 58) — Insufficiency of Evidence.
    In a prosecution for theft, evidence held insufficient to identify certain property in defendant’s possession as that which was stolen.
    [Ed. Note. — Por other cases, see Larceny, Cent. Dig. § 166; Dec. Dig. § 58.]
    Appeal from Tarrant County Court; R. E. Bratton, Judge.
    Charles Smith, alias Charley Tarver, was convicted of crime, and he appeals.
    Reversed.
    C. E. Lane, Asst. Atty. Gen., for the State.
    
      
      Por other oases see same topic ar-ti section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep’r Indexes
    
   PRENDERGAST, J.

Appellant by complaint and information was charged with the theft of a suit of clothes of the value of $10, the property of Will Monnig. He was convicted and his punishment fixed at 90 days’ confinement in the county jail.

The judgment is attacked solely on the ground that the evidence is insufficient’ to sustain the verdict. The evidence as contained in the record is very meager.

William Monnig testified that he was in the mercantile business in Pt. Worth, Tex., identifying his place of business; that he had full charge thereof; that he did not give appellant permission or authority to take any clothes owned by him, either out of his store or out of the boxes situated on a vacant lot leased by him just back of his store or out of the boxes in the alley between the lot and his store, and if he did so it was without his consent; that he knew nothing of any clothes having been stolen from him; that the alley is a public alley of Pt. Worth, and he did not know who put the boxes on the lot or the alley.

William Walker testified: That on Friday, and several other days before the Wednesday night that appellant is charged with this offense, appellant and Govnor Peace, a negro working for Monnig, were talking together and seemed to be rather chummy. That it aroused his suspicion against the the negro employs. That on the Wednesday appellant is charged with this offense a little Mexican found a suit of clothes in a box on the lot back of Monnig’s store which belonged to Monnig, and that the witness and Mr. Wandry, both employés of Monnig at his store, agreed to watch the boxes back of the store. That about 7:30 p. m. on that day Govnor Peace came into the alley between Monnig’s store and the lot where he had his boxes. That they had lunch and a bucket of beer, but no other bundle than the lunch. That, when they reached a box in the alley, Govnor Peace pushed one box off the other and fumbled around in the lower box and took from it a bundle wrapped in brown paper, and when they sat down they laid this bundle between them while they ate their lunch. After eating, appellant took the bundle up, and both of these negroes went towards the end of the alley, Peace in the lead, and when he reached the street made a motion to appellant, and appellant tore off the paper, took out the suit of clothes, threw it across his arm, and went onto the street and turned east and went out of his sight. That the suit of clothes was a dark blue with a small stripe. The next morning he found a suit of Monnig’s clothes in the box that he saw them take the bundle oiit of the evening before. He produced that suit and the one the Mexican had found in court on the trial and exhibited them. That he saw four white men eat lunch about 40 feet from these ne-groes when they ate theirs. That when appellant disappeared around the building he (witness) ran down the stairs of the store where he was watching them and attempted to go out at the front door, but, finding it locked, was delayed somewhat in getting out. After he got out, he and Mr. Wandry saw the negro Govnor Peace on Twelfth street go into the back door of a saloon across the street from where he left the alley. One of them went in the front and the other the back door of the saloon and got Govnor Peace and later turned him over to the officer.

William Smith testified: That about 7:30 or 8 p. m. on the Wednesday appellant was charged with this offense appellant came into his store. That he kept a secondhand store, and appellant offered to sell him a dark blue or black suit of clothes. The witness was across the table from the appellant at the time. That it was dusk outside and pretty dark inside; he could not tell whether they had stripes on them or not. That appellant offered to take $7.50, and the witness would have given him $4.50 for them. That, when witness declined to buy, appellant took the clothes and left, and the witness had not seen him since. That about a half hour later the officer came to this witness inquiring about the clothes, and he told the officer what he knew.

Mr. Bell, said officer, a city detective, testified : That he was called over the phone to where the witness Walker and Mr. Wandry were with Govnor Peace, and he arrested Peace and took him to ’ the city hall, then went from one secondhand store to another, when he received the information concerning the suit of clothes having been offered for sale. That he arrested the appellant the next day.

This is in substance the whole of the testimony. It does not appear that the suit' of clothes the defendant had was the property, and identified as such, of Monnig. They seem never to have been recovered from any one.

In our opinion the evidence is insufficient to sustain the verdict.

The judgment is therefore reversed, and the cause remanded.  