Hodge v. State , 41 Tex. Crim. 229 ( 1899 )

Appellant's first bill of exceptions was reserved to that portion of the court's charge which instructed the jury: "If the defendant bought the alleged stolen animal from one Tims, while they were running on the range, and afterwards took the same from the range, and at the time he so bought and took the cattle he believed they were the property of Tims, then defendant would not be guilty; but if, at the time he so bought and took said cattle, he knew the cattle were not the property of Tims, then said purchase would not justify him in taking the cattle, and would be no defense to the charge against him in this case." We believe the giving of this charge, under the facts of this case, was error. There is no evidence, as we understand this record, that appellant took the cattle from the range under the purchase from Tims. Appellant's claim was that he purchased two head of cattle from Tims, for which he paid him $22, but there is no evidence that he went upon the range and gathered them. The presumption would rather be that Tims delivered the cattle. If appellant purchased the cattle from Tims, and received them from him, knowing they were stolen, he would not be guilty of theft, unless he had some connection with the theft in such manner as to make him a principal. If Tims stole the cattle, and appellant knew that fact, and purchased them from him subsequently, he would not be a principal, and could not have been convicted under this indictment. He would simply be a receiver of stolen property. So, under the facts of this case, this portion of the charge should not have been given.

Appellant requested in writing, a charge submitting the issue of circumstantial evidence, which was refused by the court, and exception reserved. This charge should have been given. This is a case of purely circumstantial evidence. The State's case was based upon possession of property that did not belong to appellant, but did belong to Lindley. He accounted for this by stating he had purchased it from Tims. So far as we are aware, this state of case has always been held to be one of circumstantial evidence.

Appellant also proposed to prove by the officer, Bird, who served on him the writ of sequestration, that, when he first met said officer, a conversation occurred with reference to the loss of and title to the cattle, and in which he told Bird that he had bought the two heifers from Frank Tims, about the 1st of January, 1898, in Hopkins County, and near the Hunt County line, and had paid $22 for them, and that the third one, a steer, was not his, and he made no claim to it; that it jumped into his pasture; that he had turned it out and driven it away several times, but that it would return and jump in again. We believe this evidence should have been permitted to go to the jury, under the circumstances of this case. Lindley, the alleged owner, had brought suit for the three animals. He had not seen appellant with reference to them prior to bringing the suit, and this was the first time appellant had been apprised of the litigation. This was a direct assault upon the ownership of the property. Under the sequestration proceeding, possession of the three head of cattle was alleged to be in him, and, when the matter was brought to his attention by the officer who was serving the writ, he made the statement offered in evidence. We believe it should have been permitted to go to the jury, along with the other facts in this connection. For the errors indicated, the judgment is reversed, and the cause remanded.

Reversed and remanded.