Robinson v. State , 22 Tex. Ct. App. 690 ( 1887 )

White, Presiding Judge.

We do not believe the testimony as exhibited in this record is sufficient to sustain the conviction of this appellant. With regard to the other two parties implicated in the theft of the hogs the evidence may be sufficient, amply sufficient, to establish the charge. But as to this appellant the case as made is simply one of recent possession and nothing more.

What is the rule with regard to recent possession alone as evidence of theft? It is fully laid down in Lehman v. The State, 18 Texas Court of Appeals, 174, as follows, viz: “But, to warrant an inference or presumption of guilt from the circumstance alone of possession, such possession must be personal, must be recent, must be unexplained, and must involve a distinct and conscious assertion of property by the defendant.” Again: "We think the rule may be stated in general terms thus: ‘ If a party in whose exclusive possession goods recently stolen are found fails reasonably to account for his possession, when called upon to explain, or when the facts are such as to require an explanation of him, the presumption of guilt arising from recent loss and possession will warrant a conviction without the necessity of further proof.’” (Citing 36 Miss., 97; 42 Miss., 642; 103 Ill., 82; 43 N. Y., 177; 65 N. C., 592; to which we add 77 Va., 411.)

Opinion delivered January 22, 1887.

Two essential requisites are wanting in this case, to wit: The "exclusive possession ” and “a distinct and conscious assertion of property by the defendant.”' We will not repeat the facts, as they will be fully reported.

Because the evidence is wholly insufficient the judgment is reversed and the cause remanded.

jReversed and remanded.