David Thomas v. The State, 43 Tex. 658

Moore, Associate Justice. The unexplained possession of stolen property recently after the theft is unquestionably a circumstance which often tends to prove the guilt of the party in whose possession it is found. Its force and effect to this end depends, however, upon all the facts and circumstances in the particular case under consideration. It is an inference of fact from the evidence, and not a presumption or conclusion of law from an established or admitted fact.

This presumption may be and is often so plain and evident an inference from the facts, that in many cases it has not been thought to be a material error, requiring a reversal of the judgment, for the court to instruct the jury in general terms, that unexplained possession of stolen property recently after it is stolen warrants the presumption of the guilt of the party in whose possession it is found.

Such a charge, however, is certainly not unexceptionable if, when considered in connection with all the instructions given, it is calculated to induce the impression on the jury that the guilt of accused is a presumption which the law requires shall be made from the fact of his being found in possession of the stolen property, instead of an inference or conclusion of their own, which they may or may not adduce from the entire evidence before them, as they may believe tó be right and proper. Whether the charge given in this case is justly subject to criticism on this ground we need not stop to inquire.

There was no evidence of possession by appellant of the corn charged to have been stolen'. It was, therefore, improper for the court to give a charge based upon such a hypothesis. It was unquestionably calculated to confuse if not to mislead the jury.

We also think, in view of the facts of this case, that the court should have instructed the jury that they could not convict the defendant on the testimony of an accomplice unless corroborated by other evidence tending to connect him with the offense committed, and that the corroboration is not sufficient if it merely shows the commission, of the offense. (Paschal’s Dig., art. 3118.) Evidently, the testimony, without that of the witness who admits himself to have been a participant in the crime, was totally insufficient to warrant appellant’s conviction.

The evidence of the owner of the corn is merely calculated, at most, to excite suspicion against appellant.

We cannot say the meagre statement which he makes, as we find it in the record, tends “to connect the defendant with the offense committed.” The only fact stated-giving the slightest support to such conclusion is that.-the .witness followed the wagon trail, in which it is supposed the corn was carried away, from his, witness’s, crib to that of appellant; but he does not say that the stolen corn, or any corn whatever, was found in appellant’s crib or elsewhere about his premises, nor whether the wagon track stopped there, went elsewhere, or turned back to witness’s place, where, as he says, it belonged.

The judgment is reversed and the case remanded. Reversed and remanded.