McAfee v. State , 121 Tex. Crim. 608 ( 1931 )

Responding to the state's motion for rehearing, we have carefully analyzed the facts of this case.

The issue before the jury was the sufficiency of the testimony to identify certain chickens found in appellant's possession the second day after their disappearance from the premises of Pfrimmer, the alleged owner. Incidentally, another fact issue was the explanation made by appellant of his possession of said chickens. These were both jury questions, and the rule adhered to with uniformity in this state is, — that the court will not disturb the finding of the jury on fact issues if there be evidence to support same. Page v. State, 114 Tex. Crim. 431,25 S.W.2d 840; Bevins v. State, 110 Tex. Crim. 52,7 S.W.2d 532; Fetters v. State, 108 Tex. Crim. 282,1 S.W.2d 312; Anderson v. State, 113 Tex. Crim. 216,18 S.W.2d 675; Stewart v. State, 71 Tex. Crim. 480,160 S.W. 381; Gill v. State, 84 Tex.Crim. Rep.,208 S.W. 926; Jacobs v. State, 92 Tex.Crim. Rep.,243 S.W. 911.

Our statute, — article 657, C. C. P., — in terms makes the jury the exclusive judges of the facts, and, when the state's proof, if believed, makes out a case, this court will not reverse because of mere conflict of testimony. Decisions to this effect are uniform and too numerous to need citation. We call attention to a few: Wharton v. State, 45 Tex. 2; Trinkle v. State, 59 Tex.Crim. Rep., 127 S.W. 1060; Jacobs v. State, 84 Tex.Crim. Rep., 208 S.W. 917; Cone v. State, 89 Tex.Crim. Rep., 232 S.W. 816; Thomas v. State,100 Tex. Crim. 114, 272 S.W. 149; Martin v. State (Texas Crim. Rep.), 182 S.W. 1119. Some of the cases cite the additional reason that this court must give consideration to the fact that the trial judge heard and saw the witnesses and overruled the motion for new trial based on the proposition that the evidence was not sufficient. We always give weight to the fact that he is in a better position than we are, being somewhat akin in his attitude to the jury, which has before it the witnesses and can note their demeanor and manner of testifying.

Pfrimmer, the alleged owner of the chickens in question, swore: "I recognized about 152 chickens that belonged to me. They brought back about 160, but seven or eight I did not claim. * * * Mr. McAfee, the defendant, claimed the seven or eight belonged to me also. * * * I am positive that these wereyour (it is evident that the stenographer intended to say my) chickens that I recovered from the home of Andy McAfee." The jury had a perfect right to believe and accept as true the testimony of Mr. Pfrimmer, and they undoubtedly did so.

Aside from this, we have the fact that appellant took the stand in his own behalf and swore that he bought 200 white leghorn chickens from the Chisholms on April 4th, just before Mr. Pfrimmer lost his chickens on April 25th, and that the chickens identified by Pfrimmer and taken by the sheriff from appellant's possession were these same white leghorn chickens referred to by appellant. Appellant also swore that he had kept these chickens in his brooder house from the time he bought them from Chilholms until they were taken by the sheriff. He also said that the white leghorn chickens bought by him from the Chisholms on April 4th were the only white leghorns he had. He also denied having gone to the Chisholms after his arrest and claimed to them that he bought the chickens in question on April 13th. Being shown a written and sworn statement made by him after his arrest for this offense, appellant was asked if he did not state therein as follows: "I had bought on the 13th of April; my stepmother went out and stayed all night with us on the 13th of April; we counted out 168 of these chickens," but replied that he said it was about that time; that he thought it was about that time, but he now knew it was on April 4th that he bought 100 reds and 200 white leghorn chickens from the Chisholms. The written statement sworn to by appellant was dated May 1st, and in it he said nothing about buying 100 red chickens from the Chisholms.

The state introduced the Chisholms, father and son, who testified that they ran a chicken hatchery in April, 1930. Henry Chisholm swore that on April 4th he sold appellant only red chickens as shown by the entry on their books, and that his memory was to the same effect, and that there were no white leghorns among the chickens then sold appellant. He said he made the entries, in their books, of said sale. G. W. Chisholm swore that they did not sell appellant any white leghorn chickens. Clements, who worked for the Chisholms, and was present on April 4th when appellant bought chickens, swore that they sold him red chickens, and did not sell him any white leghorns. He said they tried to sell him white chickens but he would not buy them. The books of this business were produced in court and showed that on March 14, 1930, appellant bought 300 red and brown chickens, large chickens; also said books showed that on April 4th said parties sold appellant 200 master bred red chickens for $32. Both of the Chisholms and their clerk, Mr. Clements, as above stated, testified that appellant bought no white chickens from the hatchery on April 4th. The entry on the books showed the sale on April 4th to appellant of 200 red chickens. The state introduced Mr. Telford, the sheriff of the county, who testified that he went to appellant's place in the latter part of April looking for Pfrimmer's chickens; that while there he saw defendant's witness Roberts at his barn and talked to him, and asked him if he knew anything about McAfee's chickens, and that Roberts said, "No, I am farming and don't pay any attention to chickens." Roberts said nothing about appellant having any white leghorn chickens about three weeks old. Appellant told witness at said time that he got the chickens at Chisholms and had had them a good while and paid ten cents each for them, but said nothing about buying red chickens at the same time. Mr. Telford further testified that Pfrimmer was with him at the time and identified these chickens as his. Both Pfrimmer and the sheriff contradicted appellant in his statement that the chickens taken by the sheriff were kept in a brooder, both saying that they were in a dugout and were dirty when recovered. Appellant introduced the witness Roberts, above referred to, who testified that he knew appellant bought about 200 white leghorn chickens and 100 red chickens on April 4th, saying he got them from the Chisholms. Appellant introduced two witnesses who lived on his father's farm near appellant's home who undertook to say that appellant had a number of white leghorn chickens which he said he bought from the Chisholms. Appellant also introduced his stepmother who said she helped him load some white leghorn chickens at the Chisholms on April 4th; also another witness who testified that she saw appellant with a number of chickens, the number stated by him to her being 350, early in April, and that his stepmother was with him at the time.

It appears plain from a perusal of the testimony that that given by appellant and his witnesses was contradicted by the state witnesses, and was in some measure self-contradictory. This fact is mentioned, not to shed light upon the rule above stated authorizing the jury to reconcile conflicts in testimony, and that their conclusion will be binding upon this court, but to make manifest the fact that the jury, in the case before us, were entirely justified and supported in reaching such conclusion.

The only question in the record for review being that of the insufficiency of the testimony, we have concluded upon mature reflection and a careful analysis of the facts that we were in error in directing a reversal of this case.

The state's motion for rehearing will be granted, the judgment of reversal set aside, and the judgment of the trial court will be affirmed.

Affirmed.

ON APPELLANT'S MOTION FOR REHEARING.