55 S.W. 173 MOTE v. STATE. Court of Criminal Appeals of Texas. January 24, 1900. Appeal from district court, Limestone county; L. B. Cobb, Judge. Jeff Mote, Sr., was convicted of theft, and he appeals. Reversed. Robt. A. John, Asst. Atty. Gen., for the State. BROOKS, J. Appellant was convicted of the theft of a hog, and his punishment assessed at two years' confinement in the penitentiary. In the view we take of this case, it is only necessary to consider one question, Page 174 —the sufficiency of the evidence to support the conviction. The facts are substantially as follows: G. H. Wright, prosecutor, testified: "I saw my spotted gilt sow in my field about 3 o'clock in the evening of February 26, 1899. She failed to come up that evening, so I went to hunt for her the next morning. I went over my field, and found my bunch of hogs' tracks; and followed them from my field into Ross' pasture, and from Ross' pasture into Myers' field, and on into defendant's field. Between Myers' and Ross' I discovered two human tracks. One had on shoes, and one was a barefooted track. These two tracks followed on after, as if they were driving the hogs. The hog tracks in Myers' field turned and came home, except one track. This track went on into the field of Jeff Mote, and was followed by the two human tracks. I trailed the bunch of hogs back to my house, and know they were mine, because the tracks came back to my house. The track that went into the field of defendant was my spotted gilt sow. I followed the track to where she was killed. I there found on the ground some blood where she was stuck. I saw signs where the hog was caught and killed in defendant's field. The hog was killed, and dragged some ten or fifteen feet, and where it stopped there were tracks of a vehicle, with two wheels, which I followed to the house of defendant, about 200 or 300 yards distant. I did not search the house of defendant at that time. I went to Mexia, and got Mr. Kinnard, who was an officer, and on Monday he, with Henry Ruff and Jake Ruff and myself, went and searched the house of defendant. We found a cotton sack, with some crumbs of fat and lean fresh hog meat in it. The sack was bloody. We also found some blood on the floor of the room where there was some cotton,—blood spots under the cotton. My hog weighed between sixty and seventy pounds. I did not see any blood on the two-wheeled cart. There were hogs running out at that time of year. I do not know it was my hog, or that it was killed, but that is my opinion. The tracks stopped where I found the blood. My sow has no peculiar marks about her tracks. I know it was her, because the track came out of my field. I did not see defendant drive her or kill her. When we searched defendant's house, I did not find any fresh meat. There was some meat in a barrel about cured. I did not find any hair or entrails of my hog. There was none where she was killed, nor did I find any anywhere else. I have never seen or heard of my hog since. It never failed to come up before. There were tracks of two persons, one a barefoot, at some places in the Myers' field; only one track in my field; only one hog track where the hog was killed. I tracked my other hogs home." Jake Ruff testified substantially as did the prosecutor, and in addition stated the two-wheel cart belonged to defendant, and the sack with the bloody crumbs of fresh hog meat was found in the bottom of a washtub, covered over with clothes. Henry Ruff testified substantially as did Jake Ruff. J. L. Kinnard, in addition to the above, testified that the track of the shoe was about a No. 8, and the other was barefoot. The cart was found backed up against defendant's smoke house. The shoe track was about the length and breadth of the defendant's foot, and the two human tracks corresponded with those of the defendant and his boy. The blood on the steps looked like it had been washed over. The tracks of the cart came from the house of defendant to the place where the hog was stuck, and returned, and was backed up to the door of the smoke house. Mack Blakely testified that he was at defendant's house on the day Wright's hog was stolen, and did not leave until about 30 minutes after dark. "When I had gone some 300 or 400 yards from the house, I heard three licks, and a hog squeal. I did not see any one. I never went to where the hog squealed. Defendant did not eat dinner at home, did not say where he was going, and did not return home while I was there. I did not see defendant driving any hogs. Did not see him kill a hog. Jeff Mote, Jr., was at home all evening, except when his mother sent him to the garden." Rowell testified: "About an hour by sun I saw a negro in the field, going towards Ruff's, some 300 or 400 yards from where they started the tracking. Did not recognize the darky." Lucy McCoppey testified that she lived in Freestone county, four or five miles from defendant, and four or five days before the theft she gave defendant some spareribs, backbone, etc., in a cotton sack, by Jeff Mote, Jr. The sack found in the tub was her sack. M. J. Mote, defendant's wife, testified: "I was at home all day of the alleged theft. After dinner defendant went after a load of wood, and got back about the middle of the evening. I went to fix him dinner, but he would not stay, and said he was going to town. Jeff Mote, Jr., was home all evening, except when I sent him to the garden. I know he did not drive nor kill any hog, as he was at home all the evening. He came before Jeff Mote came home with the wood, and stayed until after dark. He and I ate dinner about 3 o'clock. Defendant came home about 11 o'clock that night, with some stick candy. There is no other place where he can get candy, except at Mexia. He did not bring any hog home. There has been no fresh meat in my house, except what ma sent some days before. I had some hog meat in a barrel in the corner of the room. That was the hog ma gave me, and it was about cured. My children play with the cart, and sometimes go 500 or 600 yards from the house with it. I don't know what time Blakely left my house, but it was after dark. The cotton sack found in the tub belongs to ma, and the crumbs in the sack came off the backbone and spareribs. The sack was not at the bottom of the tub, under the clothes, but was on top, where anybody Page 175 could stand off and see it. There was no blood on the floor or steps, or under any cotton, and none had been washed up." Defendant testified: On the day of the alleged theft he hauled wood, and got home about the middle of the evening, and then went to Mexia. Did not stay for dinner. "I stayed in Mexia until about 10 o'clock, and got home about 11 o'clock, or after. I did not kill Wright's hog, nor have anything to do with it. I brought some candy home from Mexia. There was about a half bale of cotton in my smoke house. I walked around my place frequently. There was no blood anywhere on floor of smoke house. Don't remember where I got the candy, or who I saw in Mexia that night. I was at home when they searched the house. The cotton sack that had blood on it and crumbs of fat and lean meat was in the tub on top of the clothes, and not under the clothes. There is no blood on my smoke house floor or steps. I never covered it up with cotton, and no blood had been washed over." After a careful inspection of the facts above stated, we do not think they are sufficient to sustain the conviction, and for that reason the judgment is reversed, and the cause remanded.