
    CAIN v. STATE.
    (No. 4395.)
    (Court of Criminal Appeals of Texas.
    March 21, 1917.)
    Larceny <&wkey;55 — Evidence— Sufficiency.
    In a prosecution for theft, evidence held insufficient to sustain the conviction.
    [Ed. Note. — For other cases, see Larceny, Cent. Dig. §§ 152, 164, 165, 167-169.]
    Appeal from Criminal District Court, Dallas County; Robt. B. Seay, Judge.
    Burrell Cain, alias King, was convicted of theft, and he appeals.
    Reversed and remanded.
    E. B. Hendricks, Asst. Atty. Gen., for the State.
   DAVIDSON, P. J.

Appellant was convicted of theft, his punishment being assessed at two years’ confinement. in the penitentiary.

Substantially, the facts show that on the night of the alleged theft appellant, the alleged owner Parker, and a witness named Chenéy, were sitting on the gallery of a house at which they boarded, which belonged to the witness Mrs. Criddell. The alleged owner states, after sitting there a while, he went to his room, which adjoined the gallery, to go to bed; that he counted his money, as he often did, and had about $278, and also had a watch supposed to be worth about $25; that before going to bed he went out on the. gallery and aroused the witness Cheney, who seems to have fallen asleep. After arousing him, the two went to bed in the room, Parker hanging his pants, with the money in one of the pockets, on the head of the bed. This room had a screened door which they latched on the inside, and the windows had screens which were nailed down. Appellant was on the gallery singing, it seems from the testimony of Cheney, after they retired to their room, and lay down. The singing disturbed him, and he made some comment, and defendant ceased singing and supposedly went to sleep. About the time Mrs. Oriddell retired, or was retiring, appellant went through her room and talked with her a moment, and went really or supposedly to his room, which was in the rear end of the house. The house consisted of four rooms in a straight line, all of them fronting east. Behind the house was a vacant square space between it and one or more beer saloons. On this vacant space the negroes would gather and “have a good time.” Mrs. Oriddell testifies that defendant paid her some money the day preceding the alleged theft, or shortly before, stating that he had only a small amount of money left. He paid her $1 at one time and 25 cents at another, leaving him, as she testifies, under his statement, with very little money. The next morning appellant and another negro, Mrs. Oriddell says, were eating breakfast at a café or restaurant somewhere about the town. She found them there, and another negro testified that during the meal defendant treated to beer. Appellant’s room, Mrs. Oriddell says, had one of the screened windows up the next morning. He left earlier than usual. It seems he was a laborer. The next morning Mrs. Oriddell seemed to be somewhat excited, and was perhaps the first one to discover that something had gone wrong in the house and talked about it. Finally, Parker and Cheney came and told her about the matter, and they went out on the front gallery. The screened door and windows of Parker’s and Cheney’s room had not been disturbed, but their pants were found on the gallery rolled up separately, with Parker’s money gone and Cheney’s money gone. Cheney says he had $21 and some cents and a watch supposed to be worth $25. Parker testified that appellant did not know that he (Parker) had the money, and, so far as the record goes to show, he was not aware that either of them had money. Parker went to the city hall tha next morning and gave information that his property had been stolen. A policeman named Pegues saw defendant the next evening late and had a conversation with him. What that conversation was is not stated, but after having this conversation, which occurred before an arrest, he examined defendant and found $7 on his person — a $5 bill and two $1 bills. Oheney says he lost one $1 bill, and Parker says he lost two or more. There is no reason given why the conversation between Pegues and appellant was not inserted in the record. This is practically the case, with fuller details of the testimony perhaps than was necessary.

We do not believe the evidence is sufficient to justify this conviction. It does not meet the requirements of circumstantial evidence, nor does it exclude every reasonable hypothesis except the guilt of the defendant. There were equal opportunities for others to have gotten the money. No one saw appellant in the room. Something like $300 in money and two watches were taken. They say appellant had a $5 bill and two $1 bills There was a $5 bill and four $1 bills lost, but that is too slender a circumstance, under the facts of this case, to justify the conviction. He may have gotten the money; he may not have gotten it. This record fails to show that he did, and the circumstances are not legally sufficient to so show, in our judgment.

There are bills of exception in the record; but as qualified and presented we will not discuss them, as they may not arise upon another trial, especially the alleged misconduct, of the jury.

The judgment is reversed, and the cause remanded. 
      <S=oFor other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes
     