Thompson v. State , 43 Tex. 268 ( 1875 )

Moore, Associate Justice.

Whenever the value of the property alleged to have been stolen is an element for determining the grade of the offense or the extent of its punishment, it is unquestionably necessary to allege in the indictment the value of the stolen property. Obviously, therefore, when the difference between grand and petit larceny is distinguishable merely by the value of the property stolen, not only must its value be stated, but where several articles are stolen, unless the value of each article stolen is alleged instead of the aggregate value of the whole, if there is a failure in the proof of the larceny of some of them, a general verdict would not be justified by the evidence or warrant a judgment, because in such case the indictment would not show the value of the articles proved to have been stolen or the grade of offense of which the defendant should be adjudged guilty. It is therefore generally customary, and is certainly more prudent, to allege the separate value of the articles stolen, rather than to charge merely their aggregate value. Still, if the indictment is in all other respects sufficient, on sound reason it cannot be held to be defective merely because it alleges the aggregate value instead of the several individual values of the articles charged to have been stolen. That under such character of indictments parties may escape conviction for the lesser grade of offense, is an objection to the policy, and not to the legal sufficiency of such indictments.

But while we do not think the motion to arrest the judgment on this ground should have been sustained, we think the application for a new trial should have been granted, because the verdict is not warranted by the evidence. In all ordinary criminal cases it is said that a general verdict of “ guilty” is a finding for the State of everything which is well charged in the indictment. Thus, it finds that the defendant stole every article specified in the indictment, and that they are of the value charged. If the evidence is not sufficient to warrant these conclusions, then it cannot be said that a general verdict which imports them is justified by it or should be sustained. In this case there certainly can be no pretense that the testimony in the record will warrant the conviction of appellant for stealing the two sows. “ That they came home some time about the first of July in the mark that defendant gives,” which is all the testimony, is altogether insufficient to sustain the verdict as to them, is too obvious for comment. Yet the only testimony as to value was with reference to the aggregate value of all the hogs as laid in the indictment. And even as to the four barrow hogs, while there is much and strongly conflicting testimony as to which of the claimants was the owner of them, there is little, if any, credit to be given to appellant’s witnesses, which warrants the belief that they were fraudulently'and feloniously taken by him.

In view of the facts of this case and the issue presented by them, there was error in the charge given by the court as well in its refusal to give that asked by the defendant. When property is shown to have been recently stolen and there is no question as to its title, but the point in dispute is whether the defendant is the thief, unquestionably proof of possession of the property by the defendant shortly after it was stolen may be adduced as evidence tending to prove defendant guilty of the theft. But even then it is not strictly correct to charge the jury that mere possession of property recently stolen is prima facie evidence of the theft, which devolves upon the defendant the necessity of explaining such possession, so as to rebut the presumption or raise a reasonable doubt in the minds of the jury of defendant’s guilt.

Such charge reverses the rule as to the burthen of proof, and transfers it from the State to the defendant. The charge in effect tells the jury, if defendant is shown to have been in possession of the stolen property, they should find a verdict against him, unless he can rebut the presumption or raise a reasonable doubt in their minds of his guilt, while the true rule is that the possession of property recently stolen is evidence against the accused, which, like all other evidence, is to be taken and considered by the jury in connection with the other testimony in the case. And unless the jury, on consideration of it in connection with the other evidence before them, are satisfied of the guilt of the accused beyond all reasonable doubt, they should acquit him. In this case there was no controversy in regard to the possession of the four barrows in question. Appellant not only admitted possession, but claimed them as his property, and supported his claim by strong testimony tending to establish its truth. Under such circumstances, the issue upon which the case should have been decided was whether the hogs, if not his property, were taken by the defendant, believing them to be his, or whether he took them fraudulently and with the intent to deprive the owner of them. This issue is clearly presented in the charge asked by appellant and it should have been given.

The character of discussion indulged in by the district attorney in his concluding address to the jury, as shown by the bill of exceptions, was not justified or warranted by the evidence in the case or what had been said by appellant’s counsel, to which it is claimed to have been a legitimate response. And such line of argument should not have been insisted upon by him or allowed by the court when objected to by defendant’s counsel. But whether it was, notwithstanding the charge of the court in reference to it, given at the instance of defendant, calculated to do him such injury as should, if it stood alone, require a reversal of the judgment, need not on the present occasion be decided, as this must be done for the reasons already stated. We deem it, however, of sufficiently grave importance and so highly objectionable as to require the decided condemnation of the court. Zeal in behalf of their clients, or desire for success, should never induce counsel in civil causes, much less those representing the Staté in criminal cases, to permit themselves to endeavor to obtain a verdict by arguments based upon any other than.the facts in the case and the conclusions legitimately deducable from the law applicable to them.

The judgment is reversed and the case remanded.

Reversed and remanded.