Alston Jones v. State , 117 Tex. Crim. 568 ( 1931 )

In a motion which appeals strongly to us by reason of its fairness and understanding of the principles of law controlling in cases of this character appellant renews his contention that the testimony is not sufficient under the rules of circumstantial evidence to connect him with the original taking of the hogs. It is frankly conceded in the motion that cited cases are of little value because of the varying facts in each case. Notwithstanding this admission we have carefully examined the cases to which we have been referred.

About the only general conclusion to be derived therefrom is that it is the duty of this court in its reviewing capacity to determine whether there be any evidence in the record upon which the verdict of the jury might be based. In determining that question the evidence should be viewed in the strongest light from the standpoint of the State to ascertain if it makes the guilt of appellant reasonably certain. Taylor v. State,87 Tex. Crim. 330, 221 S.W. 611; Mason v. State,108 Tex. Crim. 452, 1 S.W.2d 283.

Sometime in the forenoon appellant appeared at the home of Rollie Cansler and inquired for him. His wife informed appellant that Rollie and one Wofford had gone away but would soon be back. After they returned appellant and the two others talked together for a time and then the three of them left. When they returned they brought with them some dead hogs. Wofford remained to build a fire around the pot for the purpose of heating water preparatory to dressing the hogs. Appellant and Cansler again went away. On this trip appellant got the negro York to aid in dressing the hogs and they went to the place where appellant had formerly lived where they got other dead hogs which they also took to Cansler's. Appellant's conduct and conversation was evidently such as to impress York with the idea that appellant was the owner of the hogs, for he testified that he thought they belonged to appellant. The trip to Houston with the hogs must already have been in contemplation when appellant first talked to York because he was promised that he would be taken to Houston. Considering appellant's activity in the matter it seems scarcely reasonable to infer that he entered into an unlawful enterprise regarding the hogs which had already been inaugurated by Cansler and Wofford. The most reasonable hypothesis seems to be that the three of them were acting together in the enterprise from its inception and that appellant was one of the original takers of the hogs. We still feel that under the facts the jury was not without evidence upon which to predicate their verdict and that we would be unauthorized to disturb it.

The motion for rehearing is overruled.

Overruled.