
    RASBERRY v. STATE.
    (No. 3291.)
    (Court of Criminal Appeals of Texas.
    Nov. 4, 1914.)
    Laeceny (§ 55) — Cattle Theft — Evidence.
    In a prosecution for cattle theft, circumstantial evidence held to sustain a conviction.
    [Ed. Note. — F'or other cases, see Larceny, Cent. Dig. §§ 152, 164, 165, 167-169; Dec. Dig. § 55.]
    Davidson, J., dissenting.
    Appeal from District Court, Jones County; John B. Thomas, Judge.
    Lee Rasberry was convicted of cattle theft, and he appeals.
    Affirmed.
    C. E. Lane, Asst. Atty. Gen., for the State.
    
      
      For other oases see same topic and section NUMBER in Deo. Dig. & Am. Dig. Key-No. Series & Rep’r Indexes
    
   HARPER, J.

Appellant was convicted of theft of cattle, and his punishment assessed at two years’ confinement in the state penitentiary. No exceptions were reserved to the introduction of testimony, no objections made to the charge of the court as given, and no special charges requested. So the only question presented for review is the sufficiency of the testimony to sustain the conviction.

The testimony shows that J. W. Howell was manager of the “O bar O” ranch, in Kent county; that a cow belonging to this company was found dead in the pasture, where she had been killed by being shot. The cow was skinned, and the two hind quarters taken; the remainder of the cow being left where killed. A number of witnesses testify to trailing a horse from this cow to appellant’s house. The track of the horse was measured on the ground where the cow was killed, and this measurement exactly fitted the track of the left fore foot of appellant’s horse. The track of a man was also measured, where the cow was killed, and this measurement fitted the track made by appellant at the time of his arrest. Fresh beef was found in appellant’s house, behind a wagon sheet, which witnesses swear were the hind quarters of a beef. Sheriff McCoombs testified that he measured the horse track and the man’s track at the place where the cow was found; that in trailing the track to appellant’s house he measured it twice more, and they were the same; that when he got to the house he says:

“I took the measure, and raised the foot of Rasberry’s horse, and put the measure lengthwise to it, cross-wise, and across the cork. 1 first measured the right fore foot of that horse, and found that the measurement lengthwise and crosswise was exactly right; but in measuring across the corks they were a little too narrow. Then I took up his left fore foot and measured it, and it was exactly correct with the measure. I do not know whether I measured the right foot or the left foot at the cow. The man’s track fitted appellant’s exactly.”

Appellant offered no explanation of his possession of this beef at the time, but on this trial some witnesses testify that appellant had been given one hind quarter of a beef, some ten days prior to the time the beef was found in bis bouse, by bis brother-in-law. However, the witnesses for tbe state swear there was more than one bind quarter of a beef found at appellant’s bouse, and that tbe beef found was fresh — not more than three or four days old at tbe outside. Mr. Bostick says, as, to tbe quantity of beef be found in Lee Rasberry’s bouse, that it looked to be two quarters of beef cut up in tbe boxes. “I think there was more than one quarter.” Appellant undertook to account for but one quarter ten days old, when all tbe witnesses say tbe beef found in appellant’s bouse was only three or four days old. Under such circumstances, we will not disturb tbe verdict.

Tbe judgment is affirmed.

DAVIDSON, J.

(dissenting). I think tbe evidence too inconclusive and uncertain to meet tbe requisite rule of circumstantial evidence. Tbe horse tracks did not fit; at least, tbe witnesses say one track did, and tbe other did not. Two bind quarters were taken — only one found at appellant’s bouse, and this be proved by uncontradicted evidence was given him by bis brother-in-law. Tbe facts to render tbe citizen infamous ought to be more cogent than this record discloses.  