
    NOBLE v. STATE.
    (No. 4379.)
    (Court of Criminal Appeals of Texas.
    March 7, 1917.)
    1. LaRCeny <&wkey;40(2) — Larceny of Hog — Issues and Proof.
    Under indictment for stealing a hog, the state must connect the defendant with the taking of the hog while alive and before it became pork.
    [Ed. Note. — For other cases, see Larceny, Cent. Dig. §§ 103-108.]
    2. Larceny <&wkey;55 — Larceny of Animal — Evidence — Sufficiency.
    Evidence held insufficient to sustain conviction for theft of a hog.
    TEd. Note. — Eor other cases, see Larceny, Cent. Dig. §§ 152, 164, 165, 167-169.]
    Appeal from District Court, Marion County; J. A. Ward, Judge.
    Frank Noble was convicted of hog theft, and he appeals.
    Reversed and remanded.
    Armistead & Benefield, of Jefferson, for appellant. E. B. Hendricks, Asst. Atty. Gen., for the State.
   MORROW, J.

Appellant was indicted and convicted for the theft of a hog, with his punishment fixed at two years’ confinement in the penitentiary. The only question raised for review is whether or not the evidence is sufficient to support the conviction.

G. B. O’Rear testified that he had charge of and was part owner of a sow and eight shoats that were running on the range; that he saw the sow and seven shoats run by him one afternoon between 5 and 6 o’clock; that after going home and after supper he went to hunt the missing shoat, and when he he got near appellant’s premises he saw some negroes out in the yard; that the next morning he and the sheriff went to appellant’s premises and found on the table in appellant’s house a hog which had been cut up, and part of'it was gone; that he saw in the yard where the hog had been cleaned and saw the hair; that the skull of the hog had been “busted”; that he recognized the meat as having been from his hog by the size of the ears, the size of the meat, and color of the hair, the weight of the hog about 75 pounds, and the fact that it was a sow; that he took the meat .home with him, claiming to own it; and that appellant made no statement. He and the sheriff testified that at a point about 200 yards from appellant’s house on the road they noticed indications on the ground where something bad been dragged, and followed this to a point about 45 yards from the road, where they found indications that hogs had been rooting and where one had kicked and scuffled; that there was no sign of the .dragging farther than the road.

Sid Hart, a white man, and his wife, testified that on the evening that the hog was lost, about 5 or 6 o’clock, they were driving along the road about 200 yards from appellant’s house and saw lying in the road a black and white spotted hog, unmarked; that it was nearly dead; that they had passed an automobile, or met one; and that they saw tracks of an automobile near where the hog lay and assumed that an automobile had struck it. No one was near the hog at the time, and Hart and his wife went to appellant’s house and told appellant’s wife about the hog they had seen in the road and advised her to get it out of the road, as it might be run over again. Appellant’s wife testified that she acted upon this advice and found the hog and recognized it as belonging to her brother George, and that she and her little boy dragged it to her house, leaving it in the yard, and that it was dead. Mrs. Hart further testified that the hog bore no appearance of having been hit in the head.

Appellant and his brother-in-law, George Waite, - testified that they had gone to a store called Bonham Landing, about four miles from appellant’s house, and had spent the afternoon there, and returned to appellant’s house between 8 and 9 o’clock, finding the hog dead in appellant’s yard at the time they returned, recognized it as belonging to George Waite, had cleaned it and cut it up, and that Waite had knocked it on the head with ap ax. Two other witnesses testified that they saw appellant at Bonham Landing on the evening in question; that he left about 8 or 8:30 o’clock, and one of them testified that he had spent the afternoon there from 1 o’clock on.

Appellant. and his wife claimed to have stated to the sheriff and O’Rear, at the time that they found the meat, that the hog belonged to George Waite. This was denied by O’Rear and the sheriff.

Appellant proved a good reputation.

The state relies upon circumstantial evidence alone. We quote from Branch’s Ann. P. O. p. 1341:

“If the main fact is proved as a matter of inference from other facts in evidence, the - case rests wholly, in a legal sense, upon circumstantial evidence. In cases of theft the main fact to be proved is the taking from the possession of the person in whom possession is laid,_ and if there is no direct evidence of such taking— the main fact — a charge on circumstantial evidence is required.”

Many authorities are cited by the author, including the ease of Stewart v. State, 71 Tex. Cr. R. 480, 160 S. W. 381.

We quote also from the same page the following:

“Proof of an admission of defendant will not relieve the court from the necessity of charging on circumstantial evidence in a theft ease unless the same is an unequivocal admission of the taking of the property by defendant from the possession of the person in whom possession is laid, and if it is only by a process of inference that it can be determined that there is a confession or admission of such taking — the main fact — the court should charge on circumstantial evidence. Crowell v. State, 24 Tex. App. 410, 6 S. W. 318; Willard v. State, 26 Tex. App. 130, 9 S. W. 358; Pace v. State, 41 Tex. Cr. R. 208, 51 S. W. 953, 53 S. W. 689; Gentry v. State, 41 Tex. Cr. R. 497, 56 S. W. 68.”

From a comparison of the facts of this case with those developed in the case of Watson v. State, 82 S. W. 514, it is very doubtful whether the evidence is sufficient to identify the meat found in appellant’s possession as having been from the hog which was lost by O’Rear.

Assuming, however, that the identity was proved, there is no direct evidence that appellant was in possession of the hog at any time until after it was killed. It is essential to connect him with the taking of the hog while it was a hog and before it became pork, because he is charged with the theft of the animal and not with the theft of the meat. The circumstance that the condition of the ground at a point about 45 or 50 yards from the road and about 200 yards from appellant’s house indicated that a hog had made a struggle and that something had been dragged to the road is not sufficient in our judgment,- measured by the rule of circumstantial evidence laid down in Yarbrough v. State, 151 S. W. 545, and-numerous cases there cited, including Branch’s Orim. Raw, § 206, to show that appellant was present at the point mentioned, knocked the hog down, and dragged it to the road, to the exclusion of every other reasonable hypothesis raised by the evidence. The theory of the state was that O’Rear’s hog was knocked down about 5 or 6 o’clock in the afternoon. Several witnesses testified that at that time the appellant was at a point about four miles distant from his home. By the testimony of Hart and his wife (white people), it is shown that they saw the hog at about that hour in the evening lying in the road, áppárently having been injured by an automobile. At the time they saw it, appellant was not ■shown to have been: present. On the contrary, they went to his house and informed his wife of the condition of the hog. He is not shown to have been seen. The manner of the hog’s taking to -his house is explained by his wife’s testimony corroborated by the testimony of Hart and his wife, and this explanation, as well as the alibi proved, to say nothing of the weakness of the evidence of identity, are consistent with the innocence of the appellant of the theft of - the hog. Spiller v. State, 61 Tex. Cr. R. 556, 135 S. W. 549.

We must therefore conclude that the evidence fails to sustain this conviction, and order that the judgment of the lower court be reversed, and the cause remanded. 
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