No. 3652 | Tex. App. | Oct 24, 1891
The alleged stolen animal, if found and identified by the owner and those assisting him in the search, was not found in possession of appellant. The head was found back of one Goodson’s field, and the meat in Goodson’s smoke house. Defendant is not shown to have had any connection with the taking or killing of the animal. It was several days after it was killed before he was connected in any manner with it, and then only when he helped one Dennis and Goodson to load half of it on Dennis’ wagon out of Goodson’s smoke house; and neither of these parties testified that even then the defendant laid any claim to the meat, except that he received pay for it from Dennis. The testimony as to defendant’s guilt is entirely circumstantial in character, and is most meager, inconclusive, and so unsatisfactory as that we do not feel that it would be safe to let the conviction stand as a precedent. We are of opinion the judgment should be reversed for the insufficiency of the evidence. In this connection we would also call attention to the fact that, notwithstanding the alleged owner was a witness in the case, there is no direct and positive proof of his want of consent to the taking of the animal, but proof of same is left to be inferred alone from the circumstances in evidence.
The court’s charge upon circumstantial evidence is not in the language of approved forms, but, in the absence of a special requested instruction submitting the law more fully, we are not prepared to say that it is not sufficient. Willson’s Criminal Forms, No. 714, presents the law of circumstantial evidence as it has been approved by this court. Bookser v. The State, 26 Texas Ct. App., 593.
It is -unnecessary to discuss other questions raised in appellant’s brief. For the errors pointed out, the judgment is reversed and the cause remanded.
Beversed and remanded.
Hurt, J., absent.