Curlin v. State. , 23 Tex. Ct. App. 681 ( 1887 )

Willson, Judge.

One paragraph of the charge given to the jury is as follows: “If you believe the defendant did buy the heifer from another in good faith, whether he took a bill of sale or not, he is not guilty. But if you believe from all the circumstances surrounding the transaction in proof, that the sale was not made in good faith, but only to cover a fraudulent taking, then such sale would be no defense.” This paragraph of the charge was excepted to by the defense, and is before us by proper, bill. We think this portion of the charge, in view of the evidence, is erroneous,—with reference to the.count charging theft, and upon which count defendant was convicted. It authorized the jury to convict of theft although the defendant might not have been concerned in the original taking of the animal. (Clayton v. The State, 15 Texas Ct. App., 348; McAfee v. The State, 14 Id., 668.)

Under the evidence adduced on the trial, the court should have instructed the jury that possession of stolen property, to raise a presumption of guilt, must be recent. That the defendant’s possession of the alleged stolen animal was recent, the evidence is by no means clear, and it should have been left to the jury, under proper instructions, to determine that question, and the jury should have been explicitly instructed that, unless they found that such possession was recent, they would indulge in no presumption of defendant’s guilt because of the fact of his being found in possession of the animal. instruction whatever, although its attention was called to such omission by a special instruction requested by the defendant.

Opinion delivered June 24, 1887.

When defendant’s possession of the animal was first challenged, he gave an explanation thereof, stating that he had purchased the same from two strangers, giving their names. This evidence demanded a charge upon the legal effect of such explanation. Such charge was pot given, though requested by defendant. (Schulz v. The State, 22 Texas Ct. App., 16; Robertson v. The State, Id., 690.)

Because of the errors above specified, the judgment is reversed and the cause is remanded.

Reversed and remanded.