Menchaca v. State

126 S.W. 20

Tex. Crim. App.

1910

Check Treatment

AMBROSIO MENCHACA V. THE STATE.

No. 382.

Texas Criminal Reports

Decided February 2, 1910.

58 Tex. Crim. 198

directed Keeter, her renter, to put them in the pasture and that they were not to be used during her absence, and she forbid even a bridle being placed on them. During her absence the property was stolen. Under this state of facts, the indictment alleging the possession of the property to be in Mrs. Donnell, the court held there was a variance and reversed the case. In

Bryan v. State, 54 Texas Crim. Rep., 59, 111 S. W. Rep., 1035, it was held that a minor son who was living with his father and under his direction and control could not be a special owner of property, and that property that may have been in his possession must be alleged in the possession and ownership of his father, and that there wаs a variance in the bill of indictment and the proof where the allegation in the bill alleged ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍the possеssion in the minor under the circumstances, and that case was reversed. This case should have been submitted tо the jury on the second count. This count having been withdrawn and the case submitted to the jury on the first count, we hold thаt under the facts there was a variance between the allegation and proof for which the cаse will have to be reversed.

Again it is contended that the court below erred in not charging on circumstantiаl evidence. We think this point was well taken and that the court erred in not charging the jury on circumstantial evidence, the rule being that where the testimony is wholly circumstantial, it is error for the court below not to submit this issue to thе jury, and especially in this case where a special charge was requested by the appellant; and the refusal of the court to give same was error.

There are several other questions raised in the record not necessary to be considered, as they are not likely ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍to arise upon another triаl. For the errors indicated the judgment is reversed and the cause is remanded.

Reversed and remanded.

Burglary—Recent Possession—Remoteness.

Where upon trial for burglary, the еvidence showed that defendant was not seen with the alleged stolen property until at least three аnd one-half months or more after the alleged taking, the possession was too remote to come under the rule of possession of recently stolen property. Ramsey, Judge, assenting conditionally.

Apрeal from the District Court of El Paso. Tried ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍below before the Hon. James R. Harper.

Appeal from a conviction of burglary; penalty, two years imprisonment in the penitentiary.

The opinion states the case.

Owen & Boykin, for appellant.—On question of recent possession;

Curlin v. State, 23 Texas Crim. App., 681; ; ; ; ; .

John A. Mobley, Assistant Attorney-General, for the State.

DAVIDSON, PRESIDING JUDGE.—Appellant was convicted of burglary, his punishment being ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍assessed at two years confinement in the penitentiary.

1. The indictment charged the housе entered belonged to Ruby Wilson. Ruby Wilson and her sister testified they were occupying a room in a flat; that in the early morning, about 8 or 8.30 o‘clock the room was locked by Ruby Wilson and the two ladies went away. About 12 o‘clоck they returned and found the door unlocked but closed. Upon entering their room they discovered that sоme jewelry was missing. This occurred about the 16th of June. About three and a half or four months afterward appеllant was discovered with one piece of jewelry which was identified by them as their property. His arrest аnd this prosecution followed. This is practically the State‘s case. Appellant stated at the exаmining trial that he traded for the piece of jewelry in front of a certain saloon. This was in contradiction or impeachment of his statement in which he testified before the jury that he traded for it in the saloon. His contention is that he testified at the examining trial as he did on the final trial; that he did not state that he bought it in front of the saloon, but that he bought it in the saloon in front of the bar. It is contended the evidence is not sufficient to connect him with the burglary. It will be noted that the only substantial fact relied upon is appellant‘s possession of the property, which he explained by swearing that he bought it from another Mexican, appellant himself being a Mexican. The rule is fairly well settled, that where a burglary is shown to have been committed, that is, where a housе has been forcibly entered and property taken, and shortly thereafter the accused party is found in possession of property taken out of the house, this will be, ordinarily, sufficient to justify the jury in believing the acсused to be the party who entered the house and secured the property. If he gives a reasonable explanation of such possession, the State must meet and disprove that explanation, but that rulе has not been held to apply in cases where the possession is not recent. This evidence shows thаt appellant was not seen with the property until at least three and one-half months or more after it is contended the house was entered. The possession is too remote to come under the rule of possession of recently stolen property. See

Curlin v. State, 23 Texas Crim. App., 681; ; . There are other cases, but these are sufficient. Because the evidence is not sufficient, thе judgment ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍is reversed and the cause is remanded.

Reversed and remanded.

RAMSEY, JUDGE.—I think in view of the explanation given and the unimportant discreрancy in such explanation, and the failure to rebut same, taken in connection with the lapse of time from the burglary to the date of appellant‘s possession, that it may well be doubted whether the evidence is sufficient. I doubt if we should hold under the facts, as a matter of law, that such possession was not recent, as in law that term is used.