Opinion
No. 7892.
Decided November 14, 1923. Rehearing denied January 9, 1924.
1. — Theft — Sufficiency of the Evidence.
Where, upon trial of felony theft, the issues of fact raised by the testimony was a question for the jury to determine, and being sufficient to support the conviction the verdict will not be disturbed.
Appeal from the Criminal District Court of Dallas. Tried below before the Honorable C.A. Pippen.
Appeal from a conviction of felony theft; penalty, three years imprisonment in the penitentiary.
Bauer King for appellant.
Tom Garrard and Grover C. Morris, Assistants Attorney General, for the State.
Conviction is for felony theft with an assessed punishment of three years in the penitentiary.
No objection appears to have been made to the reception or rejection of any evidence, and no exceptions whatever are found in the record to the charge of the court or to any other proceeding. The only thing left for review is the sufficiency of the evidence.
Appellant was indicted for the theft of thirty-six suits of clothes and a case of domestic from Sam Disterbach. Three parties seem to have been involved in the transaction out of which the prosecution grew, appellant, Louis Felesky and Henry Bauer. Disterbach had received a shipment of goods which were packed in boxes and which had been placed upon the sidewalk in front of his store in the city of Dallas. Three of the boxes had been unpacked. Felesky who claimed to be acting under the direction of appellant negotiated for the purchase of the empty boxes from Disterbach, but when an express wagon was called to haul them off not only the three empty boxes but the two boxes containing the thirty-six suits of clothes and the domestic were also placed in the express wagon. All three of the parties appear to have been present at this time. The loss of the goods was discovered soon after they were taken and the next day were found by detectives in a room in Fort Worth occupied by the three parties heretofore named. Appellant, Bauer and Felesky all testified. Felesky and Bauer in their evidence undertook to shift the responsibility for the theft upon appellant, while appellant, with equal postiveness fixed the responsibility therefor upon Felesky and Bauer. The issues of fact raised by the testimony was a question for the jury to determine and being sufficient to support the conviction we would not be authorized to disturb the verdict.
The judgment is affirmed.
Affirmed.
[Rehearing denied January 2, 1924. — REPORTER.]