Dixon v. State , 15 Tex. Ct. App. 480 ( 1884 )

White, Presiding Judge.

“Where property is stolen in one county and carried off by the offender to another, he may be prosecuted either in the county where he took the property, or in any other county through or into which he may have carried the same.” (Code Grim. Proc., Art. 216.)

“After one has done what amounts to a complete theft, if he continues carrying away the stolen things, each step he takes with them -may be treated as a new trespass, and, the intent to steal not being abandoned, a fresh larceny; the consequence of which is that he may be indicted either in the county where he first took the goods, or in any other into which, the intent to steal continuing, he carries them.” (1 Bish. Crim. Proc., 3 ed., sec. 59; Cox v. The State, 43 Texas, 101; Connell v. The State, 2 Texas Ct. App., 422; Cameron v. The State, 9 Texas Ct. App., 332; Roth v. The State, 10 Texas Ct. App., 28.)

Opinion delivered March 1, 1884.

In this case the ownership of the animals charged to have been stolen was alleged to be in L. B. .Miller. As a witness, L. B. Miller testified in the case, and whilst his evidence shows many facts and circumstances going to establish non-consent on 'his part to the taking, yet it does not appear that he testified positively to the fact that such consent was not given by him. The role is general that circumstantial evidence .cannot be resorted to to establish a given fact, where direct and positive proof is attainable. (Porter v. The State, 1 Texas Ct. App., 394.)

The judgment is reversed and the cause remanded.

Reversed and remanded.