Cannon v. State ( 1919 )

The motion for a rehearing by the State cites many cases to the effect that it is error to charge on reasonable account of recently stolen property when that is not an issue in the case. This was one of the basic reasons why this judgment was reversed. It is always error, as we understand the decisions and the law, for the court to charge upon an issue adverse to the defendant when that issue is not made by the facts, whether this be assuming the issue of reasonable account, or any other adverse proposition, when the facts do not suggest or raise such issue. Authorities would not be necessary to sustain that proposition.

The question here was that appellant did not give an account of his possession of recently stolen property. In order to authorize a charge on that question it must be shown that the property was stolen, and recently thereafter appellant was found in possession and gave an account of that possession which, if the jury should believe, disconnected him with the original taking and showed that his possession was not fraudulent. That question does not arise when the issue is title vel non to the property. See Smith v. State, 44 Tex.Crim. Rep.; Roy v. State, 34 Tex. Crim. 301. So far as that question is concerned, the writer has reviewed the former opinion and the record, and is more firmly convinced of the fact that recent possession of stolen property was not an issue in the case, but it was one of title, and which was severely contested with strong evidence in favor of defendant that the cattle were his and not that of Jackson, from whom he is alleged to have stolen. The issue of possession of recently stolen property is predicated always upon the fact that the property was stolen by someone, and the accused was recently thereafter found in possession of it. The theory of it is that the property was stolen. The basic issue before the jury was that this was the property of defendant and not that of Jackson. The State contended it was Jackson's property and appellant had stolen it. Appellant claimed it was his property, and never had belonged to Jackson, or the company which Jackson represented.

There is another exception in the charge which was not so specifically noticed in the former opinion, and that is that the issue of possession of recently stolen property was not made by the facts. Exception was reserved to the charge for not informing the jury that that issue was not in the case, and also for that reason in giving the charge of which complaint is made. Jackson and the State's witnesses had never seen the cattle so far as they could recall, and the only claim set up was the fact that in their judgment the brand on the cattle had been some time in the past altered from the brand belonging to the Matador Land and Cattle Co. The State claimed an alteration of the brand and introduced testimony in support of that proposition, but when that was done, how remote, is not shown, except that it had been quite a while prior to the time they found appellant in possession of the property, if it in fact had been changed. The claim is made also in this connection that the issue of recent possession was not made by the facts. All the authorities hold that possession must be recent after the cattle's disappearance. This was not shown to be recent.

It is contended further that the exception to the charge was not sufficient to require this court to notice the question of ownership; that an exception was not thereto specifically reserved to the charge. The writer is of opinion that the charge is sufficient to present that question. The second exception to the court's charge is that the court was in error in charging the law with reference to recent possession of stolen property, for the reason that the proof in this case does not raise the issue of recent possession, there being no proof that defendant's possession was recent of the cattle if stolen. Appellant further excepted to the charge because the proof showed that defendant's possession of the alleged stolen animal was not recent, and the court instead of giving the law embodied in paragraph 7 (which was the charge on recent possession), should have charged the jury that possession of stolen property was not sufficient to authorize a conviction and that if they found the State relied alone on possession, and that defendant's possession was not recent after they were stolen, to acquit. The fourth ground of the exception to the charge is as follows: That the court erred in its charge because there is no proof in this case by J.M. Jackson, or any other person, that the witness Jackson or the Matador Land and Cattle Co. ever had possession of the animal in question, or that she was ever stolen from them, and defendant says that the evidence raises the issue as to the sufficiency of the proof to establish the corpus delicti, and the court's charge fails to submit said issue to the jury which should be done. We are of opinion these exceptions were sufficient to present the issue discussed in the opinion.

Taking the record as it is, the charge as given, and the facts introduced, we are of opinion these exceptions are sufficient to require this court to review and decide them.

The motion for rehearing will be overruled.

Overruled.