Mondragon v. State

33 Tex. 480 | Tex. | 1870

Lxwdsay, J.

Two prominent objections are urged in the assignment of errors against the verdict and judgment of conviction in this case. There are other grounds assigned; but they require no particular notice. The objections are, first, that no jurisdiction of the cause was acquired in Comal county by the order changing the venue from Bexar county, where the offense is charged to have been committed; second, that the court erred in giving the unqualified charge to the jury, that “if the stolen property is traced to the possession of the defendant, he must show that he cams lawfully by it, or the law considers him the thief.”

First—The change of venue was granted on the written appli- ■ cation of the defendant, setting forth sufficiently the statutory causes, supported by the required affidavits, to warrant the change. When the change was made to Comal county, the defendant offered to prove that the court house of Medina county was nearer to the court house of Bexar county than - that of Comal. But the court was otherwise satisfied, (in what manner, this court think, is not material, unless it should appear from the record that the cause of the defendant was thereby actually and positively prejudiced,) that there was “ some valid objection ” to the county of Medina. The “'valid objection ” was stated in the orders of the court. If it really existed, then, by authority of Article 2999, Paschal’s Digest, the court had the right to remove it to such county as might be deemed proper by the judge.

Second—That portion of the charge of the court upon the trial, quoted above, in some states of case, might need some qualifications as a proposition of law. But it is predicated upon the special facts adduced in proof on this trial. It is certainly true, as a general proposition of law, that the possession of stolen property must be comparatively recent- to require the possessor to give a satisfactory account of that possession to exculpate him from the legal imputation of guilt.. But if the facts proved on the trial show that the possession was recent, the failure or omission to make the qualification in announcing in the charge the deduction which the. law makes of' a guilty possession, could not operate to mislead the jury, or to prejudice the rights of che defendant. The theft took place in November. By the testimony of tbe witness, tbe. possession was in the defendant in December, unaccounted for and unexplained. Nor ivas, any attempt made by him to. account foir that possession. This, was a recent unexplained possession of stolen property, in fact, if the witnesses were to be-believed. Their credibility could alone be judged of by tbe jury. Besides, the defendant asked an additional charge from the court, (which was given,) which virtually conceded tbe recent possession, if the identity of the property was established to the satisfaction of the jury. The-judgment is-.therefore affirmed.

Affirmed.

Walker, X, did not sit in this case.