Jo. Counts v. The State, 19 Tex. Ct. App. 450

Willsoh, Judge. That this conviction is fully sustained by the evidence there can be no question. But the evidence is entirely circumstantial, and the court omitted to instruct the jury in the rules of law governing this character of evidence. Under repeated decisions this omission was fundamental error, and requires a reversal of the judgment. We presume the trial judge did not regard the evidence as circumstantial, or he would not have omitted the required instruction. But in our opinion there can be no question that the evidence is entirely circumstantial.

Defendant ivas seen in possession of the stolen animal about the time the same was missed from its range, but the place where he ivas seen in possession of it was twenty-five miles distant from its range. Ho one saw him take the animal from its range, nor did he confess to any one that he had taken it. His possession of the same, and his conduct in relation thereto, and all the other facts in the case, sufficiently and cogently establish his guilt of the theft, but still all this evidence is circumstantial. Hone of it is direct and positive.

We have no idea that the required instruction, which the court failed to give the jury, would have affected the result of the trial had it been given, but the law required that such instruction should be given, and we have no discretion in the matter. (Black v. The State, 18 Texas Ct. App., 124; Vaughn v. The State, 17 Texas Ct. App., 562; Dupree v. The State, id., 591; Murphy v.

The State, id., 645.) Defendant’s bill of exception to the ruling of the court, rejecting the proposed testimony of the witness Leffel, fails to show when the defendant made said declarations, and hence fails to show the materiality or relevancy of such declarations to the issue in this case. Said bill also fails to specify the objection which was made to the testimony. We are unable, therefore, to determine whether or not the ruling of the court was erroneous.

If .the proposed testimony was pertinent and material, we think it Avould be competent upon the ground that it was part of the res gestes of the defendant’s act of leaving Leffel’s house. (Brunet v. The State, 12 Texas Ct. App., 521.) Because the court erred in omitting to charge the law in regard to circumstantial evidence, the judgment is reversed and the cause is remanded. Reversed and remanded. [Opinion delivered November 28, 1885.]