Latham v. State , 19 Tex. Ct. App. 305 ( 1885 )

Hurt, Judge.

Appellant was convicted of the theft of an overcoat, the property of A. Deweese, his punishment being assessed at a fine of $5 and confinement in the county jail for twenty-four hours.

First error assigned is that the venue was not proved. Our learned assistant attorney-general, in his brief, admits “that the proof of venue appears to be very slight.”

The coat was taken from Upthegrove & Patterson’s wagon-yard, in the town of Greenville. This is quite clear from the evidence, and defendant was seen in possession of the coat at Stringtown. We do not judicially know that Upthegrove & Patterson’s wagon-yard, or Greenville, or Stringtown, are in Hunt county. This case is not analogous to Terrell v. The State, 41 Texas, 463.

When found in possession of the coat at Stringtown, appellant stated that he had borrowed the same from his brother, Tom Latham, and proved by several witnesses that in fact he had borrowed the coat from his brother. Defendant was wearing the coat at a public place, and made no effort at concealment, but stated and proved by several unimpeached witnesses the manner in which he came into possession of the coat. There was no effort to contradict his statement, which was reasonable; nor in any manner to impeach or throAV suspicion upon the testimony of the witnesses who swore to these facts. Under these circumstances we think the evidence insufficient to support the verdict, and the court below, for this reason, should have granted appellant’s motion for a new trial.

Because the venue was not proved, and because the verdict of the jury is not supported by the evidence, the judgment is reversed and the cause remanded for another trial.

Reversed and remanded.

[Opinion delivered November 11, 1885.]