Full opinion text
MARTIN, J. Offense, burglary; penalty, three years in' the penitentiary. The state relied for a conviction chiefly upon recent possession of stolen property from the burglarized premises. The only serious question in the casé is the question of the sufficiency of the proof of identity of the alleged stolen cotton seed found in possession of appellant to support the conviction. Prosecuting witness missed 12 sacks of cotton seed from a house on his premises. One of these sacks was branded “Cash Pedigreed Seed.” There was one oat sack holding 4½ or 5 bushels, a piece of a large sack, the rest 100-pound sacks, all tied in a peculiar way. This precise number of sacks, fitting exactly the description of witness’ property, was found in the possession of appellant. It was also shown that a car with a trailer was seen near this house of witness one night about the time the property was stolen and that appellant in going to and from his farm passed near the house in which the property was stored. A trailer was found in possession of appellant. Of course, it could not be contended that cotton seed of the character shown in this record could be positively identified. However, we regard the fact that 12 sacks, fitting the exact description of witness’ property and tied in the same peculiar manner, were found in appellant’s possession of such strong and convincing character that it will meet the de-xüands of the law as to identity. It would be a very remarkable'coincidence indeed if appellant just happened to have one sack out of 12 branded as witness’ sack was branded and just one piece of a sack out of 12 with about the same amount of cotton seed in it all tied in the same peculiar and unusual manner detailed by witnesses for the state. The evidence is not as strong as to identity . as it might be, but we believe it is sufficient' under the authorities to support a conviction. Lynne v. State, 53 Tex. Cr. R. 375, 111 S. W. 729; Fetters v. State (No. 11340) 1 S.W.(2d) 312, not yet officially reported. There is further complaint of the statements of state’s counsel before the jury. No special requested charges were asked or given to disregard such statements and they were clearly not of that inflammatory character which requires a reversal regardless of special charges given at the instance of the defendant. Finding no errors in the rec'ord, the judgment is affirmed. PER OTJRIAM. The foregoing opinion of the Commission of Appeals has been examined by the judges of the Court of Criminal Appeals, and approved by the court. ©=>For otter cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes
On Motion for Rehearing. HAWKINS, J. We are unable to agree with appellant in his renewed contention that the property found in his possession was not sufficiently identified as that taken from the burglarized premises. That stolen property may be identified circumstantially, as well as by direct testimony, is not to be questioned. Burgess v. State, 107 Tex. Cr. R. 90, 296 S. W. 318. In section 2482, Branch’s Ann. Tex. P. C., is found this language: “The state may trace by positive or circumstantial evidence the property alleged to have been stolen, and whether the property shown to have been in the possession of defendant was the identical property stolen is in most cases a question for the jury.” Among other cases cited in support of the text is Bagley v. State, 3 Tex. App. 163, where the point involved was the identity of stolen paper money. From that opinion we quote: “The actual identification of paper money, however, is often dispensed with to a considerable extent when there are other circumstances from which the general inference of guilt may be drawn.” The motion for rehearing is overruled.