
    Ed Roe v. The State.
    No. 21806.
    Delivered December 17, 1941.
    Appellant’s Motion for Rehearing Overruled (Without Written Opinion) January 28, 1942.
    
      The opinion states the-case.
    
      Robert P. Brown, of San Angelo, for appellant.
    
      Spurgeon E. Bell, State’s Attorney, of Austin, for the State.
   KRUEGER, Judge.

The offense is theft of cattle. The punishment assessed is confinement in the State penitentiary for a term of two years.

This is the second appeal of this case. The opinion delivered in the first appeal is reported in Vol. 144 S. W. (2d) 1104.

The evidence adduced by the State, briefly stated, shows that on the 20th day of August, 1939, appellant came to the home of Anton Willeke in a truck for the purpose of buying some cattle. After he had inspected the cattle, he agreed to take twenty-three head at a total sum of $1,119.00. He loaded the cattle in his truck and handed to Mr. Willeke a check in said sum, drawn on the First National Bank of San Angelo. He told Mr. Willeke that he did not have quite enough money in the bank to cover it; that he lacked a few dollars, but that in the course of two days the few dollars would be placed there and he requested Mr. Willeke to hold the check until Tuesday, the 22nd of August. On that day Mr. Willeke presented the check to the bank for payment, but the bank declined to pay it, stating that appellant had no account and had not had any account with the bank for the past two years. Mr. Willeke left the check with the bank for several days but appellant failed to pay it.

On cross-examination, Mr. Willeke testified, among other things, as follows:

“There was no conversation between me and the defendant about me selling these cattle on credit; I would not have sold him these cattle on credit. I would not have sold him these cattle if I had known or believed that there wasn’t any money in the First National Bank that this check was given on.”

Appellant testified in his own behalf and admitted that he purchased twenty-three head of cattle from Mr. Willeke at the time and place mentioned for the total sum of $1,119.00; that he drew a check on the First National Bank of San Angelo in said sum, payable to Mr. Willeke and told Willeke at the time that he wanted him to hold the check until Tuesday, August 22nd; that he did not have sufficient funds in the bank to cover the check. He further testified that he did not intend to beat Mr. Willeke out of the cattle, but that he intended to take the cattle to Fort Worth, sell them and take out his profit and place the sum of $1,119.00 to his credit in the bank to take care of the check; that he took the cattle to Fort Worth and sold them, but the market had declined and he only received $800.00 or $900.00 for them; that he did not offer any of said money to Willeke; that with $300.00 he purchased an automobile for the purpose of going to Amarillo to there purchase some cattle and make enough profit to take care of the check but in this he failed.

There seems to be some conflict between the testimony of the State and the defendant which the jury (who are the exclusive judges of the facts proven, the credibility of -the witnesses and the weight to be given to their testimony) decided adversely to his contention. We deem the evidence sufficient to justify and sustain the jury’s conclusion of the appellant’s guilt.

Appellant requested four special charges, two of which the court submitted to the jury and the other two were refused, but no exception was taken to the court’s action in declining to submit the same to the jury.

No reversible error having been reflected by the record, the judgment of the trial court is in all things affirmed.

The foregoing opinion of the Commission of Appeals has been examined by the Judges of the Court of Criminal Appeals and approved by the Court.  