43 Tex. 425 | Tex. | 1875
The defendant asked the court to instruct the jury “ that the bill of sale introduced in evidence is on proof of its execution presumed to be a bona fide transaction, unless impeached by evidence of fraud.”
There was no error in refusing to give this instruction in the form it was asked.
The possession of property which has been recently stolen unexplained raises the presumption that the party in possession is the offender. This presumption may be removed by evidence showing how the property was acquired, as that it came into the possession of the party by purchase in ignorance of the character of the title, or, if he purchased from the thief himself, that he purchased in ignorance of his character. (Burrill on Circumstantial Evidence, 539, 540.) Where the possession has been explained, and the account is reasonable, and no unfavorable
There is some difficulty in the application of the charge as given by the court to the defendant, Ivey, who was jointly indicted with Ezelle and Gox.
The court instructed the jury “ that the burden of proof is upon the defendant (Ivey alone being on trial) to prove the sale in good faith.” Again, “ if the steer charged to be stolen was bought in good faith by defendant or by Ezelle, not knowing it to be stolen, then the defendant is not guilty of theft.”
The charge fails to distinguish between Ezelle and Ivey, but is made to apply to both alike, without regard to any distinction founded on a different state of facts.
It appears that Ezelle, and not Ivey, bought the animal from Cox; and if Ivey is guilty of theft, it must be because he acted in concert with Ezelle, knowing the steer was stolen, or that it was acquired under circumstances amounting to notice of the character of Ezelle’s purchase, and not as being himself the purchaser. His presence merely, as a hired hand of Ezelle, in a lawful business, would not of itself be criminal, unless he knowingly aided Ezelle in the theft. If the bill of sale from Cox to Ezelle was a real claim of title to the property, it would be a defense to the prosecution; or if it was only a pretext to commit a theft, under color of title, it could only affect Ivey in so far as he knowingly aided Ezelle tó commit the offense.
It is further objected that the court erred in permitting the State to prove that other stolen stock, taken from the same neighborhood, were found in Eutherford’s pasture, under the control of Ezelle. To make this evidence admissible as against Ivey it must be shown that the stolen stock and the steer in question were taken at the same time, and formed but one transaction, and that Ivey’s acts were such as to show a guilty connection with Ezelle when
For error in the instructions of the court, the case is reversed and remanded.
Reversed and remanded.
