
    WILSON v. STATE.
    (Court of Criminal Appeals of Texas.
    April 16, 1913.
    On Motion for Rehearing, May 7, 1913.)
    1.Criminal Daw (§§ 393„ 448) — Evidence-Statement of Fact.
    The testimony of a witness, who had measured tracks and the shoes of accused that they were of the same length, was a statement of fact and admissible to connect accused with the crime charged.
    [Ed. Note. — For other cases, see Criminal Daw, Cent. Dig. §§ 871-874, 1035-1039, 1041-1043,1045, 1048-1051; Dec, Dig. §§ 393,448.]
    2. Darceny <§ 50*) — Evidence—Admissibility-.
    Where the state depended on circumstantial evidence to establish a larceny of cotton, that tracks leading to the door where the cotton was found had been rubbed out by the foot could be proved.
    [Ed. Note. — For other cases, see Darceny, Cent. Dig. § 142; Dec. Dig. § 50.]
    3. Darceny (§ 50) — Evidence—Admissibility.
    On a trial for theft of cotton, the testimony of a witness that he had seen mule tracks and that accused owned mules was admissible.
    [Ed. Note. — For other cases, see Darceny, Cent. Dig. § 142; Dec. Dig. § 50.]
    On Motion for Rehearing.
    4. Darceny (§ 55) — Evidence—Sufficiency.
    Evidence held to justify a conviction of theft.
    [Ed. Note. — For other cases, see Darceny, Cent. Dig. §§ 152, 164, 165, 167-169; Dec. Dig. § 55.]
    Appeal from Collin County Court; H. D. Davis, Judge.
    John Wilson was convicted of theft, and he appeals.
    Affirmed.
    Wallace Hughston, of McKinney, for appellant. O. E. Dane, Asst. Atty. Gen., for the State.
    
      
      For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep’r Indexes
    
   HARPER, J.

Appellant was convicted of the offense of theft of cotton under $50 in value, and prosecutes this appeal.

While this case was tried in the county court in January, 1911, the record has but recently been filed in this court. We know of no reason why more than two years should have elapsed from the time the case was tried until the record was filed in this court. The law comma'nds the clerks to make out these records and forward them to this court immediately after the trial, and, if the clerks would do their duty in this • respect, there perhaps would not be such complaint about delay in the disposition of cases.

It appears that Ham Howery testified; “I am a deputy sheriff, and was constable in 1910, and have been an officer for 16 years. I know the defendant and Scott Dynch. I remember going to their home in October of last year. I got there between 10 and 11 o’clock. Wilson and Dynch were in the bed asleep. Jim Dewis went with me. A man named Woods came along after we got there. After we came, a woman and little child came. I made some investigation of the smokehouse and found 1,200 or 1,500 pounds of cotton and some sacks, which were on the south side of the house and right at the door. The tracks had been tramped out. I saw some mules in the lot. They were shod and had corks on their shoes. I saw mule tracks at the wagon by the side of the field and at the house. I did not measure the mule tracks. The tracks that I saw were common mule tracks, and they were all about the same size. All the mule tracks that I saw at" the field and at the house and in the lot were about the same size. I measured some shoe tracks in the field of two different parties who came from the wagon, and I measured their tracks. 1 went to where the wagon stood, and the tracks led from that wagon, and there were two different sizes, and I measured them. I also measured Wilson’s and Lynch’s shoes at the house. I measured the tracks with two pieces of cotton stalks, and I measured Wilson’s shoes and Lynch’s shoes with the same measure I used in the field, and the length of Wilson’s shoe was the same as the length of one of the tracks, the shortest, and Lynch’s shoes were the same length as the longest tracks. Wilson had the smallest shoe.”

Appellant objected to this witness and Jim Lewis being permitted to testify that they measured the men’s tracks found where the cotton was stolen, with two pieces of cotton stalks, and had also measured the shoes of appellant and another, and they corresponded. No brief has been filed in behalf of appellant, and the only grounds urged to the introduction of this testimony were that the testimony “was immaterial, irrelevant, incompetent, prejudicial, and hearsay, and it was an opinion.” The testimony was very material and was not an opinion but a statement of a fact; they had measured the tracks and the shoes of appellant, and these were very cogent circumstances and admissible in evidence. Mr Branch in his Criminal Law says: “Where a witness qualifies himself to give his opinion as to similarity of tracks by taking measurements, making tests, etc., his opinion is admissible” —citing Weaver v. State, 46 Tex. Cr. R. 618, 81 S. W. 39; McLain v. State, 30 Tex. App. 482, 17 S. W. 1092, 28 Am. St. Rep. 934; Goldsmith v. State, 32 Tex. Or. R. 115, 22 S. W. 405; Thompson v. State, 45 Tex. Cr. R. 192, 74 S. W. 914; Meyers v. State, 14 Tex. App. 48; Rippey v. State, 29 Tex. App. 37, 14 S. W. 448.

He also objected to this witness and Wm. Rector testifying that they noticed the tracks and stating that the wagon had been backed up to that smokehouse (where the cotton was found) and the team taken out and the cotton unloaded; that the tracks had been rubbed out by the foot (the witnesses moving their hands backwards and forward), and the tracks had been spoiled out as far as 20 feet from the door. These were facts which the witnesses should have been ■ permitted to testify to, as they saw them, and the fact that the tracks had been rubbed out leading to the door where the cotton was found, to say the least of it, would be a very suspicious circumstance, and, as this is a case depending on circumstantial evidence, the court did not err in admitting, the testimony.

The only other testimony objected to was testimony as to the mule tracks found in the field. The witnesses say they were “common mule tracks”; and, as there was no evidence offered to show that these tracks were compared with the tracks made by mules owned by appellant, nothing prejudicial to appellant was admitted. It was certainly permissible for witnesses to state that they saw mule tracks, and it was admissible to prove that appellant owned mules. If there had been an effort made to compare the tracks found with the known tracks made by appellant’s mules, then, if an objection had been made that no sufficient predicate had been laid, it might be good. There is no motion for a new trial in the record, and the bills of exception present no error.

The judgment is affirmed.

On Motion, for Rehearing.

Appellant has filed a motion for a rehearing in which he earnestly insists that the testimony is insufficient to sustain the conviction. We have again reviewed the record, and, while it is a case of circumstantial evidence, we think it amply supports the verdict. Jim Lewis had some cotton stolen from him one night. Dr. Maxwell was called to Lewis’ house that night about 12 o’clock, and in going there he saw a wagon, with a mule team, stopped near where Lewis’ cotton was stored. He called Lewis’ attention to it, and shortly thereafter Lewis and a neighbor, Mr. Bowman, went to investigate the matter. The wagon had left Lewis’ cotton patch, but they followed on down the road, and at appellant’s house they saw a wagon with a mule team backed up to the smokehouse of appellant. The next morning cotton was found in this smokehouse. Lewis lost a certain character of cotton, Rowden. They found Rowden cotton in appellant’s smokehouse. No explanation is given in the record where he got this Rowden cotton. Men’s tracks were found at the point where Lewis lost his cotton. These tracks were measured. A known track of appellant was measured and they corresponded exactly. If these facts would not justify a finding that he was the person who stole the cotton, then it would be impossible to sustain a conviction unless some one saw the theft committed.

The motion for rehearing is overruled.  