Schultz v. State

White, Presiding Judge.

The indictment alleged the stolen horse to be the property of one Holt, but that it was taken from the possession of one Anders, who was then and there holding possession of the same for Holt, and that it was taken without the consent of Holt ánd without the consent of Anders.

Where the ownership and possession are thus alleged, it is necessary to prove on the part of the State, in order to make out the case, the want of consent both of the owner and the party holding possession for him. (Bailey v. The State, 18 Texas Ct. App., 427; Frazier v. The State, id., 434; Atterberry v. The State, 19 Texas Ct. App., 401; Williams v. The State, 19 Texas Ct. App., 277.)

Anders, who was a witness upon the stand, proved his own want of consent and stated the facts and circumstances connected with Bolt’s having left the pony in his possession; also that, some month ór more after the pony was stolen, Holt came to witness’s house and inquired for his pony, as he wanted to ride him on a trip out west he was then making. Witness did not know where Holt was at the time of the trial. But he says: “Tom Holt was the owner of the pony and had the legal right to take him or send another person for him. But I do not believe he would have done so without giving me notice.”

In a trial for theft the want of the owner’s consent to the taking of the property by the accused may be shown by circumstances which absolutely exclude every reasonable presumption that the owner gave, his consent. (Rains v. The State, 7 Texas Ct. App., 588; Stewart v. The State, 9 Texas Ct. App., 321; Spruill v. The State, 10 Texas Ct. App., 695; Wilson v. The State, 12 Texas Ct. App., 481; Clayton v. The State, 15 Texas Ct. App., 348; Miller v. The State, 18 Texas Ct. App., 34.)

But it is insisted that, whilst such proof can be made by circumstantial evidence, circumstantial proof cannot be resorted to so long as positive or direct proof is available. This rule is also settled, provided the party made objection at the time to the proof by circumstantial evidence. Such objection, to avail an appellant in this court, must appear by a proper bill of exception showing that such circumstantial evidence was objected to when tendered on the trial. (Stewart v. The State, 9 Texas Ct. App., 321; Williams v. The State, 19 Texas Ct. App., 277.) In this case no objection was taken or bill of exception reserved to the proof adduced, as above stated, to show Holt’s want of consent; and the charge of the court fully presented the law with regard to proof of want of consent by circumstantial testimony. We cannot see that appellant is in an attitude to make complaint as to this matter.

There is, however, an error of omission in the charge of the court which necessitates a reversal of the judgment. As to the fact of the taking of the animal there was no direct or positive proof. It is true that defendant was seen in possession of and actually sold the pony in Cuero some short time after it was missed by the party in possession. This, however, was but recent possession, and recent possession, though under certain circumstances sufficient to establish guilt, is at last but a circumstance, in itself weaker or stronger as the case may be indicative of guilt. (Lehman v. The State, 18 Texas Ct. App., 174.) Possession of recently stolen property, even when unexplained, is but circumstantial evidence of guilt in a theft case, and, the State relying solely upon that fact, the defendant is entitled to a charge upon the law of circumstantial evidenced (Sullivan v. The State, 18 Texas Ct. App., 623.) Whilst the court did fully instruct the jury in the law of circumstantial evidence as applicable to proof of non-consent of the owner Holt, there was no application of the rule generally to the case, much less specially as to the question of fraudulent taking,— the proof being entirely circumstantial as to this latter phase of the case.

[Opinion delivered February 13, 1886.]

For error in the charge of the court the judgment is reversed and the cause remanded.

jReversed and remanded.