Hilscher v. State , 48 Tex. Crim. 357 ( 1905 )

The charge quoted in regard to possession of property recently after being taken and the reasonable account of such possession is not correct and has been uniformly condemned since Wheeler's case, 34 Tex. Crim. 350. The charge here is practically a reproduction of the condemned charge in Wheeler's case. The charge given does not instruct the jury as to what the law is but what it is not. It certainly is fully "misleading" if it tells the jury the law is the opposite of what it is. The court gave or was supposed to give the law and the jury must so regard the charge. Here the charge gave what this court has more than frequently said is not the law, and the jury is bound to take the charge as the law of the case and we must suppose they did. I therefore dissent from the opinion of my brethren and believe the judgment should be reversed.