J. F. Bryant v. State

Willson, Judge. 1. The property alleged to have been stolen is described in the indictment thus: . “One twenty dollar gold piece, of the value of twenty dollars, current money of the United-States, and one five dollar bill in money of the value of five dollars, and one pocket knife of the value of fifty cents, of the corporeal personal property of J. W. McKnight.” A motion in'arrest of judgment, based upon the supposed insufficiency of the description of the alleged stolen property, was made and overruled. : Wé think the indictment is sufficient. “ Money” is property (Code Crim. Proc., Art. 782) ■, and 16 when it; becomes necessary [149] to describe property of any kind in an indictment, a general description of the same by name, kind, quantity, number and ownership, if known, shall be sufficient.” (Code Crim. Proc., Art. 427.) This last quoted Article is a new provision added by the revisers, and dispenses with the great particularity required prior thereto in the description of property, especially money. In this indictment the money is described by name, kind, quantity, value and ownership, and while this description would not perhaps be good under decisions made before the adoption of the above quoted provision, we think it is amply sufficient now. 2. Defendant excepted on the trial to the following paragraph of the court’s charge to the jury, viz: “Possession of property recently stolen is evidence against the accused, which, like all other evidence, is to be taken and considered by the jury in connection with other testimony in the case.” We think the exception to this charge well taken. It was not necessary for the court to charge upon this evidence separately and apart from the other evidence in the case. It was giving to it undue prominence, and especially was it improper to say to the jury that such evidence was against the defendant. The true rule is that “ the possession of property recently stolen is merely a fact or circumstance to be considered by the jury, in connection with all the other evidence submitted to them, in determining the guilt of the possessor.” (McCoy v. The State, 44 Texas, 618; Watkins v. The State, 2 Texas Ct. App., 73.) It is not always that the possession of recently stolen property is evidence against the possessor. It is always admissible evidence in a trial for theft, but it is for the jury and not the judge to determine whether it is against the defendant. And even when it is evidence against the defendant, it is of itself, unaided by other evidence, insufficient to support a conviction, and the court committed a further error in refusing to so charge when requested so to do. (Dreyer v. The State, 11 Texas Ct. App., 503; McWhorter v. The State, 11 Texas Ct. App., 584.) We think the paragraph of the charge above quoted was erroneous, and, being promptly excepted to, the error must reverse the judgment. 3, This conviction is based alone upon circumstantial evidence. The court charged in regard to this character of evidence as follows: “In order to convict on circumstantial evidence, the circumstances must be so connected as to exclude every reasonable hypothesis but the guilt of defendant.” This portion [150] of the charge was excepted to at the trial, because it was not sufficiently full and specific to enable the jury to understand and apply the rules applicable t<r circumstantial evidence. We think the exception is well taken We are of the opinion that, when tested by the decisions, the charge does not fill the demands of the law. (Rye v. The State, 8 Texas Ct. App., 153; Henderson v. The State, 14 Texas, 514; Hunt v. The State, 7 Texas Ct. App., 212; Barr v. The State, 10 Texas Ct. App., 507.) As the evidence in this case was not only entirely circumstantial, but was also of a rather questionable character, the principal witness for the State being, at the time of the alleged theft, in an intoxicated condition, it was very essential that the charge of the court upon circumstantial evidence should fill the full measure of the law. 4. There are other questions presented by the record, and other errors, perhaps, which would demand a reversal of the judgment, but they are such as are not likely to again occur upon another trial of the case, and we will not therefore consume time in discussing and determining them. For the errors in the charge of the court named above, the judgment is reversed and the cause remanded. Reversed and remanded. Opinion delivered May 7, 1884.