
    JACKSON v. STATE.
    (Court of Criminal Appeals of Texas.
    April 19, 1911.)
    Larceny (§ 53) — Evidence.
    In a prosecution for theft of a cow which disappeared Saturday, where the theory of the prosecution was that the cow was killed by the accused on Monday, and as to which the evidence for the prosecution was only circumstantial, the rejection of evidence offered by the accused to show that, when the cow was found on Tuesday, she had been dead four or five days, is error, as the killing of cattle to secure the hide constitutes a theft of the cattle, but it is not a theft of an animal to remove the hide from a dead animal.
    [Ed. Note. — For other cases, see Larceny, Dec. Dig. § 53.]
    Appeal from District Court, Harrison County; W. C. Buford, Judge.
    George Jackson was convicted of cattle theft, and he appeals.
    Reversed and remanded.
    Y. D. Harrison, for appellant. C. E. Lane, Asst. Atty. Gen., for the State.
    
      
      For other eases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key No. Series & Rep’r Indexes
    
   DAVIDSON, P. J.

Appellant was convicted of cattle theft.

A brief summary of the case may be thus stated: The alleged owner, Campbell, owned a cow. The cow disappeared from home about Saturday, and on Tuesday several miles away the carcass of a dead animal was found by Campbell, which he says was his cow. This animal had been skinned. There is some evidence showing the animal had been shot in the forehead. On Tuesday Campbell, in company with Mr. Conner, was riding, it seems, in search of the missing cow. Attracted by buzzards, they went to the spot where the carcass was found. Campbell testified that he examined the animal and identified it as his. Mr. Conner testified that Campbell was not certain about it, and the effect of his testimony was that Campbell thought the cow was his, and, if he failed to find his cow on the range, then he would feel confident of the fact that the dead cow was his. It is not here undertaken to go into a detailed statement of the facts in this connection, as we do not consider this phase of it important in regard to the matters to be decided. As they are only incidental, therefore, accuracy of details as to these matters is not important.

The state undertook to show that appellant sold the hide of an animal to Mr. Stein. Campbell went to town and looked around for the hide that he supposed was his, and, after investigating several places, found one in Stein’s possession that he claimed. This was about Thursday after he had seen the dead animal in the woods. Some days later he went and made another search for the hide. 'Stein testifies in this connection that Campbell came to his house and identified the hide, and several days later came and identified another hide; that between the two dates of inspection by Campbell he had shipped away the first hide identified by Campbell. The details of this phase of the testimony are not deemed to he necessary. Therefore the matter is dismissed with the above general statement.

The state’s theory was that the animal was killed on Monday, and, if it was Campbell’s animal, in order to make the state’s case under the facts, and to show this was Campbell’s animal, it was necessary to identify the animal in question as having been killed on Monday. The state undertook to strengthen this phase of the case by showing that appellant was at a certain negro residence, some mile and a half or such matter from where the animal was killed, on Monday evening. There is some evidence introduced through Campbell as to a conversation that he had with appellant, and about which he and appellant both testified; their testimony being contradictory with reference to the matter, which was that appellant offered to pay for .the cow and calf. Appellant’s testimony was that Campbell told him that if he did not pay that he would prosecute him, and that he did not offer to pay, and not only did not offer to pay, but emphatically denied having anything to do with the killing of the cow, and therefore he declined to pay. There is some testimony corroborative of appellant in this respect.

As before stated, the state’s case revolved around the fact mainly that the animal was killed on Monday, and skinned, and that the cow was killed by somebody, and such facts as the state could secure were introduced to connect appellant with it.. It was a case of circumstantial evidence in this respect. Nobody saw the killing, and appellant was thought to be connected with it in the manner already stated. Evidence was offered by appellant through the witness Conner, who was with Campbell and saw the dead animal, to show that at the time they saw it on Tuesday the cow had been dead at least four or five days. This was indicated by all the environments, condition of the carcass, and matters of that character. The court excluded this evidence, and error is assigned upon the ruling. The matter is properly presented by bill of exception. In fact, there are two or three bills reserved to the rejection of this character of testimony. We are of opinion this was error. The state sought to show by such circumstances as it could that the animal was killed on Monday. . This was a matter of inference, as no one saw the killing, and, if the animal had been dead four or five days at the time Campbell and Conner saw it, then it was not •Oampbell’s animal, for the simple reason under the testimony the animal was killed before Campbell’s cow left home. This character of testimony is clearly admissible. The state had relied largely upon the same character of testimony to convict. Certainly it would not be denied appellant the right to meet this character of testimony by the best attainable evidence, and in this particular case this rule is made to bear more certainly by reason of the fact that the state was relying upon the same character of testimony to a considerable extent. See Morris v. State, 30 Tex. App. 95, 16 S. W. 757. We cite this case, but hardly deem it necessary.

To restate the case, the state’s theory was that appellant killed the cow for the purpose of securing its hide. ’ If this was a fact, appellant might be guilty of theft of the cow. but, in order to make him guilty under this theory, it must be shown beyond a reasonable doubt that he killed the cow for the purpose of getting the hide. Unless he killed the cow, and this was Campbell’s cow, he would not be guilty of stealing the cow. It is not theft of an animal to remove the hide from a dead animal. So the state’s whole case would depend upon the fact that appellant killed the cow on Monday and for the purpose of taking the hide. This approaches yery closely to violation of the rule of placing one presumption upon another presumption, neither of which is with definite accuracy shown or supported. If appellant skinned the animal, he would not be guilty unless he himself killed the animal for the purpose of stealing the hide.

It was clearly erroneous on the part of the court to reject the evidence above discussed. Therefore the judgment is reversed and the cause is remanded.  