
    Jerry Overturf v. The State.
    
      No. 7525.
    
    
      Decided April 20.
    
    Fact Case.—See opinion for evidence held wholly insufficient to support a conviction for theft of coal.
    Appeal from the County Court of Grayson. Tried below before Hon. E. P. Gregg, County Judge.
    Appellant was prosecuted by information for the theft of one ton of coal, of the value of $5.50. On his trial he was convicted, and his punishment assessed at a fine of $1 and one hour’s imprisonment in the county jail. The facts are sufficiently stated in the opinion.
    No brief for appellant.
    
      JR. H. Harrison, Assistant Attorney-General, for the State,
    in his brief, says, ‘6 If the court thinks the evidence sufficient to sustain the conviction, the judgment should be affirmed.”
   DAVIDSON, Judge.

Appellant was tried for and convicted of theft of coal, alleged to be the property of La Bryer. The evidence fails to show that any coal was ever taken by appellant from La Bryer.

The only coal taken by appellant was taken from along the right of . way of the Missouri, Kansas & Texas Railway Company; and this was not in the possession of La Bryer; but if in the possession of any one, it was in the possession of one Kelley, who gave appellant his authority and consent to take same.

Because the evidence does not support the conviction, the judgment is reversed and the cause remanded.

Reversed and remanded.

Judges all present and concurring.  