Beck v. State

44 Tex. 430 | Tex. | 1876

Moore, Associate Justice.

The motion for a new trial should have been granted. The testimony does not support and justify the verdict. The mule alleged to have been stolen had been out of the actual possession of the owner for some two years before appellant is shown to have had any connection with it. During this time the owner knew nothing about it, except that he had heard it had gotten out of the pasture, where he had placed it, and was running in a bend of the river below the pasture. Much too great a length of time had elapsed since the mule had been in the possession or under control of the owner for the proof of possession and claim of ownership by appellant to raise the presumption of theft. And especially when, as in this case, the proof shows that defendant purchased it from a party living in the immediate vicinity of the owner and himself, and held and used it openly under this claim of title, with the knowledge of the owner, for months before, on the demand of the owner, he surrendered it to him.

The evidence before the jury shows that the mule had upon it the owner’s brand when it was first in appellant’s possession, which brand was subsequently changed, and that appellant, when asked about the mule by the owner, denied that he had a mule in "defendant’s brand. The change of the brand, if such was the case, is unquestionably a circumstance calculated to excite a strong suspicion as to the bona fide character of appellant’s claim to the mule. But it cannot be said, under the circumstances of this case, that the alteration of the brand and denial that he had possession of a mule in the owner’s brand can be regarded as anything more than suspicious circumstances, tending to prove guilt. The denial of a known fact, and attempt to conceal, destroy, or pervert evidence of the owner’s title to property, or which is calculated to prove guilt, may, and doubtless does, often occur from a cowardly fear of a groundless charge, based upon suspicious circumstances ; or a covetous desire to retain property for which one has paid, under the supposition that he was acquiring a bona fide title, but which he afterwards finds belongs to another. A fraudulent and dishonest purpose to retain property to which one has no just claim is by no means inconsistent with the absence of a felonious intent in its original acquisition. And especially when it is shown, as in this case, that it was purchased from one in possession of it, and there were no circumstances connected with such possession to excite doubt or suspicion as to his right to it. Schultz, from whom appellant claimed to have gotten the mule, was examined as a witness, and his bill of sale to appellant for the mule exhibited and proved. Owing, doubtless, to the fact that appellant attempted to conduct his own defense, without the assistance of an attorney, the bill of sale was not submitted to the jury. But if we may look to it and to the affidavits filed with the motion for a new trial, it will be seen that there is strong reason to believe that the witness for the State, who testified that the mule was in the owner’s brand after it came into appellant’s possession, was mistaken.

The judgment is reversed and the cause remanded.

Reversed and remanded.