43 Tex. 268 | Tex. | 1875
Whenever the value of the property alleged to have been stolen is an element for determining the grade of the offense or the extent of its punishment, it is unquestionably necessary to allege in the indictment the value of the stolen property. Obviously, therefore, when the difference between grand and petit larceny is distinguishable merely by the value of the property stolen, not only must its value be stated, but where several articles are stolen, unless the value of each article stolen is alleged instead of the aggregate value of the whole, if there is a failure in the proof of the larceny of some of them, a general verdict would not be justified by the evidence or warrant a judgment, because in such case the indictment would not show the value of the articles proved to have been stolen or the grade of offense of which the defendant should be adjudged guilty. It is therefore generally customary, and is certainly more prudent, to allege the separate value of the articles stolen, rather than to charge merely their aggregate value. Still, if the indictment is in all other respects sufficient, on sound reason it cannot be held to be defective merely because it alleges the aggregate value instead of the several individual values of the articles charged to have been stolen. That under such character of indictments parties may escape conviction for the lesser grade of offense, is an objection to the policy, and not to the legal sufficiency of such indictments.
But while we do not think the motion to arrest the judgment on this ground should have been sustained, we think the application for a new trial should have been granted, because the verdict is not warranted by the evidence. In
In view of the facts of this case and the issue presented by them, there was error in the charge given by the court as well in its refusal to give that asked by the defendant. When property is shown to have been recently stolen and there is no question as to its title, but the point in dispute is whether the defendant is the thief, unquestionably proof of possession of the property by the defendant shortly after it was stolen may be adduced as evidence tending to prove defendant guilty of the theft. But even then it is not strictly correct to charge the jury that mere possession of property recently stolen is prima facie evidence of the theft, which devolves upon the defendant the necessity of explaining such possession, so as to rebut the presumption or raise a reasonable doubt in the minds of the jury of defendant’s guilt.
The character of discussion indulged in by the district attorney in his concluding address to the jury, as shown by the bill of exceptions, was not justified or warranted by the evidence in the case or what had been said by appellant’s counsel, to which it is claimed to have been a legitimate response. And such line of argument should not have been insisted upon by him or allowed by the court when objected to by defendant’s counsel. But whether it was, notwithstanding the charge of the court in reference to it, given at the instance of defendant, calculated to do him such injury as should, if it stood alone, require a reversal
The judgment is reversed and the case remanded.
Reversed and remanded.