Polanka v. State

This conviction was for hog theft. The statement of facts incorporated in the record constitutes this a conviction depending wholly upon circumstantial evidence. It was therefore incumbent upon the trial court to instruct the jury in regard to the law applicable to such testimony. This is the settled rule in this State by an unbroken line of decisions, and a failure to comply with it requires a reversal of the judgment, though exception be not reserved. Willson's Crim. Proc., sec. 2342, for collated authorities.

A charge upon alibi was requested by appellant, but refused by the court, and an exception was reserved. As there was some evidence bearing on this theory, though weak and inferential, it would be better that such charge be given upon another trial. The charge, as asked by appellant, submitted the question of alibi upon the theory only of nonpresence of appellant at the time and place of the taking. Applicable to the facts, this was hardly correct, because appellant may have been guilty and yet not bodily present at the actual taking. He may have been guilty as principal, as that term is defined and understood in this State.

The judgment is reversed and cause remanded.

Reversed and remanded.

Judges all present and concurring.