158 S.W. 811 | Tex. Crim. App. | 1913
Appellant was convicted of hog theft; his punishment being assessed at two years’ confinement in the penitentiary.
The state’s contention is that J. E. Ketch-am, the alleged owner, lost two hogs, and the circumstances pointed to appellant and others as having taken them. Ketcham testifies he had some hogs running in the bottom; they disappeared. In looking for them, he says, he found where two hogs had been driven or “tolled” by two parties, possibly there may have been a third party. He says the means by which the hogs were “tolled” was corn. He followed these tracks for some distance, and in the direction of where appellant and others lived. Failing to find his hogs, he procured a search warrant, and investigated the houses of several people living in that neighborhood, and in three or four of these places he found fresh hog meat, which he says would correspond in size to his missing hogs. This is the substance of the state’s case. Appellant denied, with reference to the matter, that he had taken Ketcham’s hogs; that he was not where the hogs were taken. In other words, he proved a complete alibi. He further proved that he worked at a certain house on a chimney until about noon or a little later, and for stated reasons, which are unnecessary here to repeat, the work ceased, and he, and others assisting, killed two of his own hogs, selling some of it to his neighbors and those who assisted him. In this way he accounts for the meat found in his and his neighbors’ houses. The case for the state is one of circumstantial evidence, based upon the facts above stated. Without going into a detailed statement of the evidence further, the above is made to review the questions presented in reference to the charge of the court.
The court, in a general way, informed the jury that, if they believed appellant took the hogs of Ketcham under circumstances which constitute theft, he would be guilty, and in this connection charged on circumstantial evidence. The court did not charge the law applicable to the case as to principals or alibi, nor did he instruct the jury in affirmative terms that, if appellant was not present at the time of the taking of the animals so as to constitute him a principal in the taking, he would not be guilty; nor did he charge the jury that if he was only an accomplice or an accessory, or a receiver of the stolen property, he could not be convicted as a principal. These matters were all
Appellant, in order to be a principal, must be connected with tbe original taking so as to constitute him a principal under tbe statute; otherwise be could not be convicted under this indictment. If be was not present, but advised tbe theft of tbe bogs, and they were taken in pursuance of bis advice, be would be an accomplice by express terms of tbe statute.
If after tbe bogs were stolen, and be knew them to be stolen, be received tbe property, in either event be could not be convicted under this indictment which charged him as tbe principal. This question has been so thoroughly reviewed in so many opinions it is deemed unnecessary to cite cases, but tbe matter underwent thorough investigation in tbe recent case of Menefee v. State, 149 S. W. 188, and in tbe case of Sam Kaufmañ v. State, 159 S. W. 58, decided at the present term on motion for rehearing in an opinion by Judge Prendergast. Appellant having availed himself in a timely manner of these defects in tbe charge and tbe court’s failure to apply tbe law to tbe ease entitles, him to a reversal of tbe judgment.
Tbe judgment is reversed, and tbe cause is remanded.