Ben Hart v. The State, 22 Tex. Ct. App. 563

Hurt, Judge. This- is an appeal from a conviction for the theft of a mare and colt, alleged to be the property of V. T. Cummings. The State, over the objections of defendant, proved that defendant forfeited his bail bond. Appellant contends that proof of flight is admissible only in cases in which the State relies upon circumstantial evidence for a conviction, citing Williams v. The State, 43 Texas, 182. This court holds to the contrary, that is, that flight by a defendant is admissible in all cases, whether the evidence be circumstantial or direct, (Black v. The State, 3 Texas Ct.

App., 581.) The court charged the jury that the taking of property under an honest claim of right can not constitute theft, though the party may be mistaken in his claim, and the intent with which an accused acted, whether an honest intent or a fraudulent intent, is a question of fact for the jury to determine from all the facts and circumstances established by the evidence. To this charge defendant objects, because it instructs the jury to consider only such facts and circumstances as are established by the evidence, and not all the facts and circumstances in proo f.

We can see no practical difference between the two propositions. If facts and circumstances are in proof, certainly they are established by the evidence. Proof is the result of evidence. A fact established by the evidence is in proof, and such fact is the result from the evidence established by it.

The court charged the jury if some other person stole the mare and colt and took them into actual possession, and that defendant did not assist in such actual taking, but afterwards purchased said mare and colt and received possession of them from the person who stole them, the defendant would not be guilty of theft although he may have known that his vendor had stolen them. To this charge it is objected that there was no evidence tending to show that any person had stolen the horses, or had ever had actual possession of the same.

We will discuss this part of the charge in connection with another proposition urged by appellant, to wit: “In case of theft, where the defendant claims the property under claim of purchase, it is immaterial whether he purchased the property in good or bad faith.” This proposition may or may not be correct, depending upon other facts. If defendant obtained possession of the property from some other person with or without purchase, in good or bad faith, with or without knowledge that it was stolen, he can not be convicted of theft.

But suppose defendant took the property from the possession of the owner, and to justify the trespass—the taking—he relies upon a purchase from some other person. In such a case it is of the first importance whether defendant acted in bad faith. For, if he knew the person from whom he purchased had no right to sell, and that the sale was a fraud upon the rights of the owner, a taking under such circumstances, though he had purchased the property, would be fraudulent, as much so as if there had been no purchase.

By reference to the statement of facts it will be found that the. charge complained of was demanded by the evidence, and, hence there was no error in the charge. The court charged the jury the rule applicable to a case of recent possession, with reasonable explanation.

There is no objection urged to the rule as stated by the court, but it is insisted that the court should have made a direct application to the facts bearing upon this matter; and in support of this position we are cited to Windham’s case, 19 Texas Court of Appeals, 422; Miller’s case, 18 Texas Court of Appeals, 34; York’s case, 17 Texas Court of Appeals, 441; Richardson’s case, 7 Texas Court of Appeals, 499, and Francis’s case, 7 Texas Court of Appeals, 514. We have examined each of these cases, and find none of them support the position of appellant.

When the rule is stated clearly and correctly upon the question of recent possession, we have found no case in which it is held that there must be a direct application of the rule to the facts. That part of the charge in which the rule is stated is very clear and simple, and there can be no doubt but that its application to the facts bearing upon this subject was thoroughly understood by the jury.

The charge is as follows: “When a person found in possession of property recently stolen, when first found in possession of it ■or when his title thereto is first called in question, gives a reasonable and probable explanation consistent with his innocence, such explanation rebuts the presumption of guilt arising from such recent possession, and it devolves upon the prosecution to show that such explanation is false.” It would be a dangerous doctrine to require the court to conclude this charge with instructions to the jury to acquit if the State failed to show the explanation of defendant to be false, because it is a rare case in which there are no other criminative facts except recent possession with reasonable explanation; and, while it may be true that other criminative facts would tend to disprove the apparently reasonable explanations made by defendant, yet the jury might conclude that the State should, by direct evidence, refute the explanations, and failing in this the defendant would be entitled to an acquittal.

If, however, the inculpatory facts consisted alone of recent possession with reasonable explanation, it would be proper to so charge the jury. We have read with interest the close and very plausible argument of counsel for appellant in .support of the proposition that the evidence is not sufficient to support the verdict. But, after a careful examination of the statement of facts, we do not think we would be warranted in reversing the judgment upon this ground. Opinion delivered December 11, 1886. We have found no such error in the judgment as will require a reversal thereof, and the same is affirmed. Affirmed.