Robert Stockman v. The State, 24 Tex. Ct. App. 387

White, Presiding Judge. On his direct examination the State had proved by the prosecuting witness' Chilton that, in looking for his lost sheep, he went to the shearing camp of one Dean, and there saw Dean and had a conversation with him about the sheep, in which Dean stated that he had the sheep; also that Dean, at one of the conversations had with him, gave his consent for witness to take the sheep, and that subsequently he refused to let him do so.

On cross examination by defendant, the witness was asked if in the conversation in which Dean declined to give up the sheep he, Dean, did not claim as a reason for his action that he had purchased them. This question and the answer thereto were objected to, and the objection was sustained upon the ground that the evidence sought to be elicited was hearsay. The evidence was admissible upon the principle that “when part of a conversation is given in evidence by one party, the whole on the same subject may be inquired into by the other.” (Code Crim.

Proc., art. 571.) Another well settled rule under which the evidence was also legitimate and admissible is that, “when

an act is done to which it is necessary or important to ascribe a character, motive or object, what was said by the actor at the time from which the character, motive or cause may be collected is part of the res gestos—verbal acts—and may be given in evidence, whether the actor be or be not a party to the suit.” (1 Greenl. Ev., sec. 108, and note, and note on page 130; Williams v. The State, 4 Texas Ct. App., 5; Sager v. The State, 11 Texas Ct. App., 110; Pharr v. The State, 9 Texas Ct. App., 129.) Opinion delivered November 26, 1887.

In the sixth paragraph of the charge of the court, which is specially complained of, the jury were instructed: “If a person is found in possession of property recently stolen, and if the circumstances are such as call upon him for an explanation and he fails to give any explanation of such possession, then these facts would authorize his conviction if a presumption of guilt has arisen in the minds of the jury from such facts.” It is not for the judge to say what amount or degree of evidence is sufficient to warrant a jury in convicting.

To do so is to charge upon the weight of evidence, and is reversible error. (Rice v. The State, 3 Texas Ct. App., 451; Lunsford v. The State, 9 Texas Ct. App., 217; Stephens v. The State, 10 Texas Ct. App., 120; Stone v. The State, 22 Texas Ct. App., 186.) In Ayres v. The State, 21 Texas Ct. App., 399, it was held that “possession of recently stolen property, if such possession be unexplained, is prima facie evidence of theft, such as will .authorize the inference or presumption of guilt, but such inference or presumption is not a mere legal one, but is one of fact to be found by the jury.

The trial court should in ho instance charge the conclusiveness of such inference and presumption, but should submit them as facts to be found by the jury; for, at most, they are but circumstances from which guilt is inferred, and not positive proof establishing it.” Eor the errors discussed, the judgment is reversed and the cause remanded. Reversed and remanded.