Matlock v. State, No. 6142

No. 6142 | Tex. App. | Jun 16, 1888

Hurt, Judge.

This conviction is for theft of a cow. Webb, the owner, lost the cow from the range about October 1, 1881. Crippen bought the cow from appellant and Jeff Matlock about October 1, 1883, at his butcher pen in East Waco, McLennan county, and paid twenty dollars for her. He put her in his pen, and on the next day Webb came, claimed and took her away. He, Crippen, sent word to appellant and Jeff, and they came in and refunded the twenty dollars, stating that they had bought the cow from a negro named Smith, on the Rose farm, in McLennan county. This farm is five or six miles above Waco* They showed him (Crippen) a little piece of paper on which a bill of sale was written. It seemed to have been torn out of a book.

The Matlocks drove the cow along a public road (the Dallas and Waco) to East Waco, and sold it to Crippen. While on the way, when asked where they got the cow, they said: “From a negro man.” On or about October 1, 1883, the Matlocks drove the cow to and penned her at S. Matlock’s, stating to him that they had bought her from a negro man named John Smith; appellant stating that he had given a pistol and three dollars for the cow, and he exhibited a bill of sale for the cow, the bill being written in a small book.

If the accused is found in possession of stolen property, and is called upon to explain, but fails so to do, it may be inferred —presumed—that he was the taker. But the possession must not be too remote, and, if remote, the party in possession is not bound to explain at all; the rule being that the possession must be recent. And by all the opinions (says Mr. Bishop), the presumption that the party in possession was the taker diminishes in strength as the time increases between the theft and the possession. If the possession is very remote (yet how remote must depend upon the special nature of the case), the judge, in his discretion, will exclude it as having no sufficient tendency to prove anything. Its remoteness depends upon the nature of the thing stolen. Is it such property as passes readily from hand to hand, or not? If, from the nature of the property, it would pass readily from one person to another, the possession, to have convictive strength, must be more recent than the possession of propérty which does not so pass. (2 Bish. Cr. Pro., secs. 739, 145.)

Applying these rules to the case in hand, we are of the opinion that the possession of the animal charged to have been stolen is too remote to call upon appellant for an explanation. Bearing upon this question, what are the facts? The cow was stolen about October 1, 1881. She was found in possession of appellant about October 1, 1883. Two 3rears after the theft the animal is found in the possession of the appellant. Was this possession sufficiently recent to call for an explanation? We think not, nor do we think an authority can be found holding to the contrary. (See Willis and Boyd v. The State, 24 Texas Ct. App., 586.)

Opinion delivered June 16, 1888.

But suppose we err in this conclusion. Appellant gave a reasonable and consistent account of his possession, which was not attempted to be contradicted or disproved by the State, except by evidence tending to show flight by the appellant and Jeff Matlock.

We are of opinion that the evidence is not sufficient to support this conviction, for which reason the judgment is reversed and the cause remanded.

Reversed and remanded.