J. S. Clark v. The State, 22 Tex. Ct. App. 599

Willson, Judge. Possession of the alleged stolen horse, recently after the theft thereof, is the only inculpatory circumstance of defendant’s guilt of the theft, of any substantial weight. This circumstance he explained before even being called upon to do so, and on more than one occasion. His explanation of his possession of the horse was that he had got it from a man named Haynes, and had traded Haynes a mare and colt for it.

While the defendant did not prove by direct evidence the truth of this explanation of his possession of the horse, he proved it circumstantially, and almost conclusively, if his witnesses testified truly. There is no evidence in the case which disproves the truth of such explanation. He told one witness, in a casual conversation, that he had owned the horse two years, but this statement was made by him in a jocular manner, and in relation to the foolish disposition of the horse.

Considering the circumstances under which this Statement was made, and the manner in which it was made, and also viewing it in connection with his more deliberate and detailed accounts of when, where and how he acquired possession of the horse, we think such statement entitled to but little, if any, consideration as evidence disproving the truth of his explanation. He said he got the horse from a man named Haynes, who lived on Armstrong creek in Erath county.

It was proved circumstantially by the State that but one man of that name lived on said creek, and this man was produced as a witness, and testified that the defendant did not get the horse from him. But defendant, when first called upon by the owner of the horse to tell who he got him from, said he got him from a man named Haynes, but not from the Haynes who afterwards testified in the case. He never at any time claimed that the witness Haynes was the man from whom he got the horse, but, on the contrary, stated that it was another Haynes, whose Christian name he did not know.

He proved that a man named Haynes had, about the time he claimed to have traded for the horse, been in his neighborhood inquiring for and claiming the horse in question, and that about said time defendant owned a mare and colt, and that said mare and colt were not seen in his possession, or in their accustomed range after the time he claimed to have traded them to Haynes for the horse. Opinion delivered December 17, 1886.

While defendant had the horse he used him openly, claimed him as his own, and at no time and in no manner concealed or attempted to conceal such possession and claim, or to account for the same in any other way than that he had acquired the animal from Haynes, by swapping therefor a mare and colt.

That the man Haynes from whom he claimed to have got the horse did not live on Armstrong creek, while tending to prove the falsity of defendant’s explanation, perhaps, is certainly of small weight when we consider that, if defendant’s explanation is true, Haynes must have been the person who stole the horse, and, being guilty of the theft, it is not likely that he would have told the defendant or any one else the truth as to his residence. On the contrary he would have sought to mislead the defendant and others not only as to his residence but as to his name.

In fact one witness testified that this man who called himself Haynes told him that he lived in Mason county. We are of the opinion that the defendant’s explanation of the possession of the horse is a reasonable, natural and probable one, and rebutted and destroyed the inculpatory force of the circumstance of his possession of the stolen horse, and it devolved upon the State to show the falsity of such explanation, otherwise the defendant should have been acquitted. (Garcia v. The State, 26 Texas, 209; Johnson v. The State, 12 Texas Ct. App., 385; Irvine v. The State, 13 Texas Ct. App., 499; Sitterlee v.

The State, Id., 587; Loving v. The State, 18 Texas Ct. App., 459; Windham v. The State, 19 Texas Ct. App., 413.) And we are further of the opinion that the evidence does not show the falsity of the defendant’s said explanation, and that therefore the conviction is unsupported by the evidence, wherefore the judgment is reversed and the cause is remanded. Reversed and remanded.