Roebuck v. State , 40 Tex. Crim. 689 ( 1899 )

Appellant was convicted of the theft of a hog, and his punishment assessed at two years confinement in the penitentiary. Appellant complains of the following portion of the charge of the court, to wit: "The ownership of property as alleged may be shown by circumstances, provided same are sufficient to satisfy the jury beyond a reasonable doubt that the same belonged to the alleged owner." This is a case of purely circumstantial evidence, and we think the court should have given a full and complete charge upon this phase of the law. It has been repeatedly held that, where the evidence is circumstantial, it is the imperative duty of the court to charge upon the law of circumstantial evidence. Burrell v. State, 18 Tex. 713; Howell v. State, 16 Texas Crim. App., 93; Crowell v. State, 24 Texas Crim. App., 404. The case nearest analogous to this one is Bryant v. State, 16 Texas Criminal Appeals, 149. The charge there on circumstantial evidence was as follows: "In order to convict on circumstantial evidence, the circumstances must be so connected as to exclude every reasonable hypothesis but the guilt of defendant." The charge was excepted to because not sufficiently full and specific to enable the jury to understand and apply the rules applicable to circumstantial evidence. We there held the exception well taken. Nor do we think the charge in this case sufficient upon this phase of the law. The books are replete with indorsements of charges on circumstantial evidence, and it is not necessary for us here to say how the charge should be worded. We do not think the evidence is sufficient on the question of the identity of the hog as being the hog of the prosecuting witness. Because the court failed to charge on circumstantial evidence, and because of the lack of sufficient proof of identity as above indicated, the judgment is reversed, and the cause remanded.

Reversed and remanded.