
    DAVIS v. STATE.
    (No. 6220.)
    (Court of Criminal Appeals of Texas.
    April 27, 1921.
    Rehearing Granted June 1, 1921.)
    1. Criminal law <$->368t1) — Statements as to ownership of grain by those hauling it held res gestee.
    In a prosecution for the theft of grain by one of those engaged in hauling it to the elevator, the warehousemen can testify that others hauling the grain to the warehouse stated it belonged to prosecuting witness, who had telephoned the warehousemen the grain was coming, since such statements were part of the res gestee of the connection of those parties with the wheat which they were then hauling.
    2. Larceny <®=>43 — Evidence of amount paid and price per bushel is admissible to show quantity of wheat.
    In a prosecution for larceny of wheat, the owner of the wheat can show quantity which he sent to an elevator, where he did not remember the number of bushels, by stating the amount of money he received for the wheat and the price per bushel, since the jury could determine the quantity of wheat from such evidence by a mathematical computation.
    On Motion for Rehearing.
    3. Larceny <®=55 — Evidence held not to sustain conviction for theft of wheat.
    Evidence that defendant was one of several drivers hauling wheat for prosecuting witness, and that he disposed of a load .of wheat for his own account under suspicious circumstances, but which did not show clearly that the owner’s wheat was short or that any shortage could have been caused only by theft, held insufficient to sustain a conviction for theft of the wheat.
    4. Criminal law 18 — Inference unfavorable to accused cannot be drawn from absence of testimony available to the state.
    No inference unfavorable to accused can be drawn on the failure to produce evidence, where the evidence was available to the state, and it would have been to the. state’s interest to produce it if it had been favorable to the state.
    Appeal from District Court, Randall County ; Henry S. Bishop, Judge.
    Roy Davis was convicted of theft and sentenced to two years’ confinement in the penitentiary, and he appeals.
    Reversed and remanded on rehearing.
    Kinder, Russell & Griffin, of Plainview, for appellant.
    R. H. Hamilton, Asst. Atty. Gen., for the State.
   HAWKINS, J.

Appellant was tried for the theft of 68 bushels of wheat, alleged to have been the property of Embry Finley, convicted, and his punishment assessed at confinement in the penitentiary for two years, from which judgment he appeals.

• No exceptions were urged to the charge of the court, and no special charge requested, except one which was a peremptory instruction directing the jury to return a verdict of not guilty because of the insufficiency of the evidence. This peremptory request was refused by the court, and will be discussed later with reference to the sufficiency of the evidence.

Only two bills of exceptions appear in the record. It appears that the owner, Mr. Finley, did Sot haul the wheat in question himself, hut had the appellant, his brother, and two other parties haul it in and deliver it at the elevators. The witness J. B. Gurley was the manager of one of the elevators, and Mr. Finley had told him) that he was going to send wheat in, and while Gur-ley was testifying he was asked by the state if he bought any wheat from Finley, and, if so, how much; whereupon counsel for defendant asked permission to question the witness on this point, and it developed that the witness Gurley would answer that he only knew it was Finley’s wheat from what the haulers said, and objected to .this testimony on the ground that it would be hearsay. We do not believe the court committed error in permitting the witness to state that the parties who delivered the wheat to the elevator told him it was Finley’s wheat. Finley had told him he was going to send the wheat in, and the statements of the haulers at the time they delivered the wheat were res gestte statements of their connection with the .wheat, and, we think, properly admissible.

While the witness Finley was testifying he was asked by the district attorney how much wheat he had sold to the Townsend elevator. He was unable to state the number of bushels, but gave the aggregate amount of money he received from the Townsend elevator and the amount per bushel he received. This was objected to by counsel for appellant on the ground that it was not the proper way to prove the number of bushels of wheat he had sold to the Townsend elevator. We find no error in the action of the court in permitting this character of testimony. The witness may not have remembered the number of bushels delivered to the Townsend elevator, but, if he knew the amount per bushel he received, and the total amount paid him for wheat delivered to that «levator it was pertinent proof which would enable the jury to determine the number of bushels by mathematical calculation; hence we find no error, as presented by appellant in his bill of exceptions No. 2.

The witness Finley testified that he had threshed 1,776 bushels of wheat, and that most of this wheat, something in the neighborhood of 1,600 bushels, had been stored in a granary situated about 200 yards from where appellant lived; the remainder of the wheat being kept at his (Finley’s) house. He did not know the exact number of bushels of wheat placed in the granary, hut estimated it to be somewhere in the neighborhood of 1,600 bushels. He secured the services of the appellant and his brother and two other parties by the name of Morris and Gassaway to haul and deliver the whéat from the granary in question to the two elevators at Happy, Tex. Upon checking up on his wheat he discovered a shortage, and an investigation resulted in developing the fact that on one day appellant was seen hauling wheat from the granary to one of the elevators at Happy, and on the next day was seen in the town of Canyon, 16 or 18 miles distant, with a load of wheat. The appellant’s conduct with reference to the sale of the wheat in Canyon is not consistent with that of an honest man in relation either to his own property, or that in his possession rightfully. He sold this wheat in Canyon under an assumed name, taking a check payable to C. E. 'Clark. Afterwards he drew a check payable to himself, purporting to be signed by C. E. Clark, for the purpose of transferring the money to his own account. We cannot agree with appellant’s contention that the evidence is insufficient to support the verdict of guilty. His access to the wheat in the granary belonging to Finley is unquestioned, and his disappearance from home for a day and night at this particular time is unexplained. The shortage in the wheat as checked up by the owner, and the conduct of appellant in handling the wheat in the town of Canyon was sufficient, we think, to authorize the jury to find that the appellant had stolen the wheat from the owner Finley. This question was submitted to the jury fairly for their consideration, and they determined that issue in favor of the state, and against appellant a proper charge on circumstantial evidence was submitted. We do not feel authorized to disturb the verdict and substitute our judgment for that of the jury upon an issue of fact.

The judgment of the trial court will be affirmed.

On Motion for Rehearing.

MORROW, P. J.

Upon re-examination of the evidence, we have reached the conclusion that it is not sufficient to support the conviction.

Perhaps the most tangible fact against the appellant is the fact that while he had access to the wheat of Finley he sold upon his own. account 68 bushels at Canyon and acted in relation thereto in a manner justly bringing him under the suspicion of wrongdoing.

The evidence is wholly circumstantial. To be sufficient, it must reveal, beyond a reasonable doubt, that Finley’s wheat was fraudulently taken, and that the appellant was the guilty agent. The taking is not satisfactorily disclosed. Finley obtained from the thresher a quantity of wheat, which, according to the thresher’s weights exhibited to Finley amounted to 1,776 bushels. A part was left at his home, and a part put in the granary. No weights or measurements were made as to either amount, but Finley, according to his estimate or guess, puts the amount in the granary at 1,600 bushels. He sold 1,169 bushels to Neff, 439½ bushels to Townsend, and 32% bushels to Gassaway. Whether that sold to Gassaway was from the granary or the home of Finley is not disclosed. The evidence shows that there was probably a shrinkage in weight during the time the wheat remained in the granary, but the amount of the shrinkage is not given.

Four persons, including the appellant, were employed by Finley to haul his wheat from the granary to the elevator. He saw. none of it loaded or weighed. Neither of these persons were used as witnesses. x

The persons at the elevator testified that certain wheat was received front each of the persons, but the amount delivered by the appellant and the others who hauled the wheat respectively was not shown.

Finley’s testimony is to the effect that his means of knowing that there was a shortage was by the variation between the thresher weights and the elevator weights as reported to him.

There is nothing in the record describing the character of the wheat which appellant sold such as to identify it as a part of that belonging to Finley. No reason is given for the failure to use the witnesses and persons who had access to Finley’s granary, nor is it shown that the granary was not accessible to others. It is not competent to use against appellant the inference that may be drawn from the absence of testimony available to the state, and which, if favorable, it would be to the interest of the state to introduce. Wilkie v. State, 83 Tex. Cr. R. 490, 203 S. W. 1091; Taylor v. State, 221 S. W. 614; Parish v. State, 85 Tex. Cr. R. 75, 209 S. W. 681.

If it be assumed that Finley had correctly guessed the number of bushels placed in his granary, it cannot be inferred that the appellant got the wheat he sold at Oanyon from the granary for the reason that the amount admittedly sold by Finley exceeds the amount that he put in his granary. Even if the shortage were established, there would arise from the testimony and absence of testimony several hypotheses consistent with the innocence of the appellant; for example, a discrepancy might have resulted from the loss of weight or from the difference in the operation of the scales used at the various places and from the uncertainty as to how much wheat was taken by others having access thereto. The identity of the wheat found in the possession of the appellant with the stolen property cannot be assumed.

“There must be legal and competent evidence pertinently identifying the defendant with the transaction constituting the offense charged against him.” Branch’s Ann. Penal Code, § 1877.

No inference sufficient to support the conviction can be drawn from the fact that appellant was in possession of wheat at Canyon and was guilty of suspicious conduct relating thereto, in the absence of other evidence excluding the theory arising from the fact that Finley lost no wheat, or, assuming that he did, it was the act of others whose oppor. tunity to take it was equal to that of appellant, which theory the state, having means to combat, has failed, to disapprove.

The motion for rehearing is granted, the affirmance set aside, and the judgment of the trial court is now reversed, and the cause remanded. 
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