Pink Harris v. The State, 13 Tex. Ct. App. 309

White, P. J. No evidence was adduced on the trial of this case directly connecting this appellant, either as principal or hired hand, with the taking, penning or driving Awalt’s cattle— the cattle alleged in the indictment to have been stolen. He drove cattle as a hired hand of Anderson, and penned them in Peter Dunn’s pen, and he was seen in proximity to a bunch of cattle by other witnesses; but there is a signal failure on the part of the witnesses to identify in any manner these cattle, or any of them, as- the Await cattle.

Nor is the steer which ran with and was stolen at the same time identified by these witnesses as having ever been in possession of defendant. Does the evidence, then, support the verdict and judgment? We think clearly not. All the facts testified to may be true, and yet wholly inconsistent with defendant’s guilty participation in the theft of the animals for the theft of which he was tried and convicted. Without the evidence connects him in some way with the property charged to have been stolen, we do not see how he can be held legally guilty of its theft.

Again, the evidence adduced in support of the theory of defendant’s guilt was wholly and entirely circumstantial, and the court failed to charge the law with reference to that character of testimony. In cases resting wholly upon this species of evidence, charges upon the subject should always be given. (Hunt v. The State, 7 Texas Ct. App., 212; Dreyer v. The State, 11 Texas Ct. App., 631.) Because both the evidence and the charge of the court are insufficient, the judgment is reversed, and the cause remanded. Reversed and remanded. Opinion delivered November 24, 1882.