Lead Opinion

Appellant was convicted of the theft of a horse and his punishment assessed at confinement in the penitentiary for five years.

Appellant's insistence that the indictment fails to allege what county the offense was committed in, is incorrect. We do not think the court *Page 38 erred in refusing to charge that possession alone was not sufficient to authorize a conviction in this case. In the first place we do not think the charge a proper one. Furthermore, the record before us shows circumstances other than recent possession going to demonstrate the guilt of appellant.

We find no bill of exceptions in the record and the evidence amply supports the verdict, and the judgment is in all things affirmed.

Affirmed.

Addendum

This case was affirmed by us on a previous day of this term. It now comes before us on a motion for rehearing.

In the original opinion we overlooked appellant's insistence that the court erred in not charging upon the law of circumstantial evidence. We now hold that a charge on circumstantial evidence should have been given. There was no witness to the taking of the animal. The possession by defendant and other circumstances alone were relied upon to convict him. This being true, the decisions of this court hold that the trial court should charge on the law of circumstantial evidence. See Hyden v. State, 31 Tex.Crim. Rep.; McCamant v. State, 37 S.W. Rep., 437; Taylor v. State, 27 Texas Crim. App., 463; Schultz v. State, 30 Texas Crim. App., 94. It follows, therefore, that the affirmance of this case was erroneous, and the motion for rehearing is granted, and the judgment is now reversed and the cause is remanded.

Reversed and remanded.