Ables v. State

Appellant was convicted of the theft of $740 from J.B. Cutts, alleged to have been committed January 9, 1914, and his punishment assessed at the lowest prescribed by law. Appellant earnestly insists that the evidence is insufficient to sustain the verdict. This is the most serious, and practically the only question in the case. We have carefully read, and several times considered, all of the evidence. Appellant himself did not testify. He introduced his sister, Mrs. Alsup, and Mrs. Sneed. If the jury had believed their testimony they perhaps would have acquitted him. Evidently they did not believe their testimony. This, under the law, was exclusively for the jury. The statute expressly says, in effect, they are the exclusive judges of the credibility of the witnesses and the weight to be given to their testimony. Therefore, we think it unnecessary to here state, even the substance of their testimony. The question, then, for this court to determine is whether or not the incriminating testimony and the inferences to be drawn therefrom, was, as a question of law, sufficient to sustain the verdict. In our opinion it was. The jury heard the witnesses testify, saw them when they did so, saw their manner of testifying, and from all of this were better able to determine the truth than this court can be from merely reading in cold type what the statement of facts shows. We do not propose to quote at length the testimony. We will give, however, the substance of the material and salient portions thereof. J.B. Cutts lived in the southern portion of Hopkins County, and *Page 303 had lived there for many years. Mr. S.A. Ables, the father of appellant, had lived in the same community only a few years. Appellant was a young man then twenty-three years of age, but had not lived with his father in that community, — was a stranger therein. For a few years before then he had lived in different locations in Oklahoma, though he had visited his father on occasions a year or two before this time. He arrived at his father's on a visit on January 8. On January 9, a widow in the same community died. Cutts and his wife and other neighbors went to the deceased's house on the morning of the 9th. Cutts remained there practically all day, from about 10 o'clock in the morning until about sundown in the evening. Appellant and his father together went to the house of the deceased in the morning, but remained only a short time. They together returned there late in the evening and then remained only a short time. Mr. Cutts testified that when he went to the house of this deceased lady that morning he had $740 currency in his left hand hip pocket in a draw-string leather pouch; that practically during the whole time he was there he stayed out in the yard, sitting on a wash bench or spring seat, alternating and shifting his position from one to the other all day; that he had carried this money thus in his pocket for several months prior to this; that it was in three different rolls, — twenty $20 bills in one roll; in another $10 bills, and in the other mostly $20 bills, with a few tens among them, and probably some fives. Two hundred dollars of the $20 bills was new money, looked like it had never been used at all. The other bills showed to have been used a good deal. Twenty dollars was the largest denomination of any of this money. The prevailing denomination of the bills of the $240 was $20 bills; that from time to time during the whole day he was there he felt for his money to see whether it was there or not, and at no time while he was there did he miss it; that the last time before leaving that he felt for it was a while before sundown and he had the money at that time; that Mr. Ables (appellant's father) and appellant were out in the yard where he was at this last time that he felt and found that he had the money in his pocket; that there was nobody else out there at that time, except those two persons and himself; that just about sundown he left to go home; his home was west and Mr. Ables' home east from the house of the deceased lady; that there was nobody else out there at the time he left except Mr. Ables and appellant. Mr. Ables testified that when he and appellant left there wasn't anyone outside. "We was the last ones." Mr. Cutts further testified that he got about 250 yards from the deceased lady's house on his way home when as he went to go through a wire fence he felt for his money and discovered that it was gone. He immediately retraced his steps, hunting for the money, over the road he had just gone, thinking then that he might have lost it on the road; he did not find it; he got back to the yard of the deceased lady and hunted for it and could not find it; that there was nothing along the road that he had traveled after he left and started home that would conceal the money if he had dropped it; that it was a plain open road, *Page 304 plumb clean, traveled a good deal; that there wasn't anything to keep him from finding the pocketbook if he had lost it after he started home; that he was in the road all the time; that no one else went along that road from the time he started home, discovered his loss and went back to the house of the deceased; that when he could not find his money he started after Mr. Ables and appellant and overtook them; that when he got in about 100 yards of them he hailed them and they stopped; that he went up to where they were and asked if they had found his pocketbook where he had been sitting, and described it; that Mr. Ables said he didn't; that he had seen his (Cutts') pocketbook sticking out of his pocket; that Cutts then said to appellant, "I am sure one of you picked it up," and said, "I lost it right there where you was at," and defendant said he did not; that he (Cutts) stood and looked at them about a minute and turned and walked off; that he later inquired of all who were at the house of the deceased at the time and none of them had found his money. Mr. Joe M. Clower testified that he was cashier of the First State Bank at Klondike, in Delta County, in 1914; Klondike was shown to be twenty-five or thirty miles west of north of Sulphur Springs, and where Mr. Cutts lived was ten or fifteen miles west of south of Sulphur Springs. Mr. Clower further testified that on February 13, 1914, appellant deposited $600 in his bank at Klondike; that it was mostly $20 bills, some tens and possibly some fives, mostly twenties; that at the time appellant made this deposit appellant kept some money, he saw it, but couldn't tell how much it was; that there were several bills in the roll; that the money he deposited had been carried in a roll some time and the bills were crimped, very badly crimped, — some of them looked like they had been crowded down some time; that some of the bills then deposited by appellant were new and some were old; that none of it was of a higher denomination than $20; that Mr. Lilly, one of the customers of the bank, was present at the time and he asked appellant where he was from; that appellant said Caney, Oklahoma; that when asked if he knew a certain banker there he said no; that he and Mr. Lilly asked him where he got the money and he said he had sold out in Oklahoma; that he had sold a pair of mules for $400 of the money. Mr. Joe Lilly testified substantially the same thing as did Mr. Clower. In addition, that he congratulated appellant at the time for depositing his money and told him it was a good idea; that when he saw that he did not deposit all of his money but put some back in his pocket, he said to him, "Son, I would leave all that money here; I would not carry all that money in my pocket." Appellant seems to have made no reply to this but put the other money back in his pocket, depositing only the $600. Mr. Charlie Phillips, who married a sister of appellant, testified that he did not know appellant until about January, February and April, 1914; that in April he sold him a mare and colt for $140; that appellant paid him a $20 bill down at the time and, wanting some money *Page 305 himself, appellant gave him (Phillips) a check on the Klondike bank for $200; that he put this check in the Citizens National Bank for collection; the check was shown to have passed through other banks, finally reaching the Klondike bank, where it was paid and remitted; that when Phillips got returns from the check he gave appellant a check for $80 of the money and appellant deposited that check in the State bank. These transactions seem to have occurred at Sulphur Springs, in Hopkins County. It seems that Cutts soon afterwards heard of this, garnisheed the Klondike bank, at least tied up the balance of the money in that bank, and that appellant was arrested at that time charged with this offense; that he had an examining trial and that Mr. Clower testified at that time, appellant being present and heard his testimony. Mr. Clower further testified that in the summer of 1914 he saw appellant in Klondike with a wagon load of peaches, selling them, and he bought some of the peaches from appellant; that in this transaction he recognized him and asked him when the case was going to come up; that on this occasion appellant went into the bank where he was and was talking about the case and especially about Mr. Clower's testimony on the examining trial; that appellant then told him that he (Clower) must be mistaken and had him mixed up with somebody else about saying that he sold a span of mules in Oklahoma; that he never owned any mules and never sold any in Oklahoma; that appellant then asked him if there wasn't four $100 bills in the $600 that he had deposited with his bank on February 13th. And he also told witness that he must have been mistaken in his testimony on the examining trial when he said that he (appellant) told him at the time he deposited the money that he was from Oklahoma. Mr. Clower further testified that there were no $100 bills in the money appellant had deposited with him; that there were no bills of a higher denomination than $20; that when appellant, on this occasion, was talking to him about the denomination of the bills that he had deposited he asked him if he didn't remember about the four $100 bills; that he told him no; that appellant insisted and that he then examined his books and daily reports where they had itemized the denomination of their bills and they had no $100 bills on that day. It is noticeable that while Mr. Ables (appellant's father) testified that he (Mr. Ables) did not see Mr. Cutts' money, he fails wholly to testify that appellant did not find and take it. They were together constantly while at the deceased lady's house, on their second visit late in the evening, remained there together alone after Mr. Cutts left them, starting to his home and left the dead lady's place when no one was in the yard, except them, and stayed constantly together from then until Mr. Cutts hailed them with the result stated above. The testimony of Mr. Cutts and Mr. Ables, taken together, unquestionably puts appellant where he alone could have found and taken Cutts' money, and excludes the idea that any other did or had the *Page 306 opportunity to get it. While the testimony of Mr. Cutts and the banker and Mr. Lilly could not and did not, with absolute certainty, identify the money which appellant deposited in the Klondike bank as that of Mr. Cutts, taking the description of it and the circumstances all together, they most certainly establish such a state of fact as that the jury were authorized to believe, as they evidently did believe, that the money that appellant deposited in the Klondike bank was that of Mr. Cutts which he had lost on the occasion stated. No other reasonable inference could be drawn from all the facts and circumstances. As stated above, Mrs. Alsup, appellant's sister, testified in his favor. If the jury had believed her testimony, it would have tended to show that in December, 1913, and for some time prior thereto, appellant had had her to keep for him in her trunk a considerable sum of money. She did not know the exact amount, nor purport to know the exact amount; that she did not count it. She said that appellant and her husband counted the money which she kept for appellant, and that her husband knew how much there was; that she only knew from hearsay. Thereupon, on cross-examination of her, the State asked her where her husband was. She answered in Oklahoma. The State then asked her where and what he was doing in Oklahoma, to which question appellant objected on the ground that it was immaterial, irrelevant and prejudicial to his rights. The court overruled these objections and she answered that her husband was in jail in Oklahoma. It will thus be seen that appellant's brother-in-law, Mr. Alsup, was a most material witness for him. He was not present and did not testify. The State had a right to probe this matter to ascertain where this witness was and why he was not present and did not testify. The fact that he was thus related to appellant and was such a material witness that if Mrs. Alsup's testimony was true appellant would have had him there to testify and if not, the State had the right to know where he was so that it could get him there and have him testify in dispute of Mrs. Alsup's testimony. Jones v. State, 7 Texas Crim. App., 103; Thompson v. State, 11 Texas Crim. App., 51; Logan v. State, 53 S.W. Rep., 694; Jackson v. State, 56 Tex.Crim. Rep.; Sweeney v. State, 146 S.W. Rep., 883, and authorities cited. The court did not err in overruling appellant's objections to this testimony of Mrs. Alsup. The court gave a most complete and apt charge, safeguarding appellant's rights in every way. The two questions above decided, as we understood from appellant's able attorney in submitting this case, were the only two material ones. No others require any discussion. The judgment is affirmed. Affirmed.