Willard v. State , 26 Tex. Ct. App. 126 ( 1888 )

Willson, Judge.

This conviction is based wholly upon circumstantial evidence, and the court, having failed to instruct the jury with regard to that character of evidence, committed error for which the conviction must be set aside. (Willson’s Crim. Stats., sec. 2342.)

Holloway, the alleged owner of the cow, testified that the defendant promised to pay him fifteen dollars for the cow, etc. This did not prove a confession by defendant of the theft of the cow, and can not be regarded as more than a circumstance tending to establish defendant’s guilt of the theft. If defendant had confessed that he took the cow, such confession would have been direct evidence, and would have dispensed with a charge upon circumstantial evidence; but there is no proof in the record that he made such a confession. (Eckert v. The State, 9 Texas Ct. App., 105.)

Opinion delivered October 13, 1888.

Other questions presented in the record will not arise on another trial, and need not be determined.

Because of the error in the charge, the judgment is reversed and the cause is remanded.

Reversed and remanded.