Brooken v. State

• Decision Date: 13 October 1888
• Parties: BROOKEN v. STATE.
• Court: Texas Court of Appeals

9 S.W. 735

BROOKEN v. STATE.

Court of Appeals of Texas.

October 13, 1888.

Appeal from district court, Wilbarger county; P. M. STINE, Judge.

William Brooken was convicted of the theft of two horses, and appeals. The state proved the disappearance of the two horses from the pasture in which they were kept on the night of March 27th; that defendant and one Rose were seen in possession of the horses on the next night, when they fled; and that a month later they were seen in possession of the horses in a distant county, the brands having been changed in the meanwhile. Defendant offered no evidence, but filed a motion for continuance, on May 29, 1888, alleging that he was arrested and placed in jail on February 24, 1888; that the sheriff refused for two weeks to furnish him with a copy of the charge preferred against him, or to inform him of the nature thereof; that a combination of influential citizens of the county became aroused against him, and was so strong that he found it impossible to secure counsel until April 13, 1888, when he caused an attachment for two absent witnesses to be issued and forwarded by mail to Wheeler county, which said attachment was returned "not found;" that thereafter, on April 20th, upon information that said witnesses were in Oldham county, he caused an attachment to issue to said county, which said attachment had not been returned. By the absent witnesses he proposed to prove that they saw one Luts in possession of the horses described in the indictment shortly after the alleged theft of the same, and that Luts declared to them that he "pulled" the animals from Carter in order to get even with Carter, who had "pulled" like animals from him. The paragraphs of the charge of the trial court to the jury, referred to in the opinion, were as follows: "To warrant an inference of guilt of theft from the circumstance of possession of recently stolen property, such possession must be unexplained, under circumstances requiring an explanation, and must involve a distinct and conscious assertion of property by defendant." "In order to warrant a conviction of a crime on circumstantial evidence, each fact necessary to the conclusion sought to be established must be proved beyond a reasonable doubt. All the facts (that is, the necessary facts to the conclusion) must be consistent with each other, and with the main fact sought to be proved; and the circumstances, taken together, must be of a conclusive nature, leading on the whole to a satisfactory conclusion, and producing, in effect, a reasonable and moral certainty that the defendant committed the offense charged." The special instructions requested by defendant, and refused, were as follows: "To warrant an inference of guilt of theft from the circumstance of possession of recently stolen property such possession must be personal and exclusive, must be unexplained, and must involve a distinct and conscious assertion of property by the accused." "If the state has not proved that defendant, Bill Brooken, took the property as a principal from the possession of Albert Carter, but has proved that he afterwards had possession of it by himself or others, without proof that he was connected with the original taking, he is not guilty in this case." "If the state has not proved that defendant had some connection with the original taking of the property of Albert Carter, then he cannot be convicted in this case, although the jury should find that, after the theft of the same, he had possession of it either by himself or in connection with others." The witness Davidson, referred to in the opinion, testified that soon after the theft he went to a certain place,...