
    WALKER v. STATE.
    (No. 10543.)
    (Court of Criminal Appeals of Texas.
    Feb. 2, 1927.)
    1. Larceny <&wkey;>55 — Evidence held insufficient to sustain conviction of theft of turkeys. , ’
    In prosecution for theft of turkeys, evidence held insufficient to sustain conviction.
    2. Larceny <&wkey;68(I) — Defendant, charged with theft of turkeys, held entitled to instruction to acquit if state had failed to prove possession or - assertion of ownership to stolen turkeys.
    In prosecution for theft of turkeys, refusal to charge to acquit defendant if state had failed to prove that the stolen turkeys had been found in defendant’s possession or that he had ever asserted ownership thereto held error under the evidence.
    Appeal from Lavaca County Court; C. L. Stavinoha, Judge.
    Will Walker was convicted of theft, and he appeals.
    Reversed and remanded.
    Marcus Schwartz, of Hallettsville, for appellant.
    Sam D. Stinson, State’s Atty., of Austin, and Robt. M. Lyles, Asst. State’s Atty., of Groesbeck, for the State.
   LATTIMORE, J.

Conviction for theft of turkeys under the value of $50; punishment, 10 days in the county jail and a fine of $15.

There is but one bill of exceptions in the record, which was taken to the refusal of a special charge asking that the jury be told that the state had failed to prove by competent evidence that the turkeys alleged to have been stolen were found in possession of appellant, or that he had ever asserted ownership to said property, and that he should be acquitted. Said instruction will be considered together with the testimony.

The state introduced a witness, who testified that 25 turkeys were put in a pen on the night of the 9th of December 1925. The next, morning 20 of them had disappeared. Observing truck tracks near the pasture gate some distance from his home, the owner of the turkeys swore out a search warrant to search the home of appellant’s mother. The search was made on December 11th, and revealed the presence of 4 turkeys in a coop in the smokehouse of appellant’s mother. Two of these turkeys were identified by the owner, first by their having their rear toes on the left foot cut off, and further by the fact that, when released on the premises of the owner, they went to their usuai roosting place on the night that they were brought back. In addition to the testimony of the owner as to the loss, recovery, and identification of the 2 turkeys mentioned, and the testimony of the sheriff to the execution of the search warrant, and the finding of 4 turkeys in the coop referred to, the state introduced appellant’s mother, who testified that she was at home when the sheriff came to her place, and that she told him to go ahead and search. She further testified that four of her sons, one of whom was the appellant in this case, came from Temple to her home in a truck about a week, or at least several days, before the sheriff came. She said the boys had in the truck the turkeys found by the sheriff on the occasion of his search. She further testified that appellant never did claim the turkeys as his; that one of her sons told her they brought said turkeys from Temple, but she did not remember which one. She testified that appellant resided near Temple, and had come home on the occasion mentioned to get ready to do some farming in the neighborhood. She said the turkeys in question were kept in a portable coop in the yard, but, as they would frequently fight her own turkeys, she had to put them in the smokehouse to keep them from fighting. The only testimony that the state had in addition to the above was the introduction of the search warrant. The defense introduced one W. T. Hall, who said he lived not far from the farm of appellant’s mother, and that on the 5th of December, 1925, he had occasion to go to her house to unload some corn, and that on said day he noticed 4 turkeys in a portable coop sitting in the yard; that the coop was marked “Coleman, Texas.” He did not examine the turkeys, but did remember the date, which was four days before the theft. These are all the facts.

It seems entirely unnecessary to analyze the above facts to show that they fall far short of being enough upon which to predicate a legal conviction of this appellant. The only testimony that brought him anywhere near the turkeys in question was that of his mother, who said that about a week before the sheriff came to her house appellant and three of her other sons came to her house in a truck, having the 4 turkeys found by the officer. There is no testimony showing any assertion of ownership, or any claim to the right of possession, in said turkeys by this appellant. While possession of recently stolen property has been deemed sufficient to justify a conviction of theft, in order to give said circumstance such weight it must show that the property was in possession of the alleged thief and was claimed by him. Deeming the evidence entirely insufficient in this case, we further observe that the charge asked was appropriate.

The judgment will be reversed, and the cause remanded. 
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