Brown v. State , 126 Tex. Crim. 449 ( 1934 )

The offense is theft of cattle; the punishment, confinement in the penitentiary for two years.

Henry Craig v. The State, Opinion No. 16,687^*, this day delivered, is a companion case.

L. C. Moorhouse had some cattle in McFaddin's river pasture. He had last seen his cattle about the 15th of October, 1932. On the 5th of November, 1932, he found a cow and a calf belonging to him in a pen on the Craig ranch. It appears that the McFaddin pasture adjoined the Craig ranch. Paul Clifford, who was in charge of the Craig ranch, testified that he saw appellant and Henry Craig in possession of Mr. Moorhouse's cow and calf on the 5th of November, 1932; that at the time said animals were with some other cattle which were being driven by appellant and Craig. According to his version, he and Frank Gilliland took up a position on a hill from which they had a good view of the surrounding country. They observed two men driving some cattle about three-quarters of a mile west of them. They were coming from the direction of McFaddin's river pasture. However, they were some distance away from the McFaddin pasture, and were in the Craig pasture when they were first seen by the witnesses. Clifford and Gilliland followed the parties for some distance until they reached a gate going into the Brown pasture. When the witnesses were within sixty steps of appellant and Craig, they (appellant and Craig) left the cattle and rode away. Later the witnesses went to the McFaddin pasture and observed some tracks which showed where some cattle had come out. They also saw the tracks of horses. Some time later inside the Craig pasture not far from the fence they found a rope which one of the witnesses testified looked like a rope belonging to Henry Craig. The tracks appeared to have gone in the same direction the witnesses had observed the cattle being driven.

Testifying in his own behalf, appellant made statements raising the issue of alibi. He introduced several witnesses who gave testimony supporting his defense.

Appellant timely and properly excepted to the charge of the court for its failure to submit an instruction on the law of circumstantial evidence. We think the trial court fell into error in declining to amend the charge. There was no direct evidence that appellant took the cattle from the possession of Mr. Moorhouse in the McFaddin pasture, where they were ranging. It is true that the State's evidence showed appellant to be in possession of the cattle in the Craig pasture. However, in cases of theft proof of possession of property recently stolen, which is unexplained, or proof of such possession explained when the explanation does not admit the taking of the property from the person in whom possession is laid, is but a circumstance, and if there is no direct evidence of such taking a charge on circumstantial evidence is required. Branch's Annotated Penal Code, sec. 2478; Martin v. State, 24 S.W. 512. We quote from Branch's Annotated Penal Code, supra, as follows:

"If the main fact is proved as a matter of inference from other facts in evidence, the case rests wholly, in a legal sense, upon circumstantial evidence. In cases of theft the main fact to be proved is the taking from the possession of the person in whom possession is laid, and if there is no direct evidence of such taking — the main fact — a charge on circumstantial evidence is required."

In support of the text many authorities are cited, among them being Ward v. State, 10 Texas App., 297; Goode v. State,120 S.W. 199; Green v. State, 34 S.W. 283.

The judgment is reversed and the cause remanded.

Reversed and remanded.

The foregoing opinion of the Commission of Appeals has been examined by the Judges of the Court of Criminal Appeals and approved by the Court.

^* (Reported on page 456 of this volume.)

ON STATE'S MOTION FOR REHEARING.