Brown v. State, 16688.

• Decision Date: 23 May 1934
• Docket Number: No. 16688.,16688.
• Parties: BROWN v. STATE.
• Court: Texas Court of Criminal Appeals

72 S.W.2d 269

BROWN v. STATE.

No. 16688.

Court of Criminal Appeals of Texas.

May 23, 1934.

State's Rehearing Denied June 13, 1934.

Commissioners' Decision.

Appeal from District Court, Knox County; Isaac O. Newton, Judge.

Frank Brown was convicted for theft of cattle, and he appeals.

Reversed and remanded.

Stephens & Williams, of Benjamin, and Wm. B. Combest, of Paducah, for appellant.

Lloyd W. Davidson, State's Atty., of Austin, for the State.

CHRISTIAN, Judge.

The offense is theft of cattle; the punishment, confinement in the penitentiary for two years.

Henry Craig v. State, 72 S.W.(2d) 272, this day delivered, is a companion case.

L. C. Moorhouse had some cattle in McFaddin's river pasture. He had last seen his cattle about the 15th of October, 1932. On the 5th of November, 1932, he found a cow and a calf belonging to him in a pen on the Craig ranch. It appears that the McFaddin pasture adjoined the Craig ranch. Paul Clifford, who was in charge of the Craig ranch, testified that he saw appellant and Henry Craig in possession of Mr. Moorhouse's cow and calf on the 5th of November, 1932; that at the time said animals were with some other cattle which were being driven by appellant and Craig. According to his version, he and Frank Gilliland took up a position on a hill from which they had a good view of the surrounding country. They observed two men driving some cattle about three-quarters of a mile west of them. They were coming from the direction of McFaddin's river pasture. However, they were some distance away from the McFaddin pasture, and were in the Craig pasture when they were first seen by the witnesses. Clifford and Gilliland followed the parties for some distance until they reached a gate going into the Brown pasture. When the witnesses were within sixty steps of appellant and Craig, they (appellant and Craig) left the cattle and rode away. Later the witnesses went to the McFaddin pasture and observed some tracks which showed where some cattle had come out. They also saw the tracks of horses. Some time later inside the Craig pasture not far from the fence they found a rope which one of the witnesses testified looked like a rope belonging to Henry Craig. The tracks appeared to have gone in the same direction the witnesses had observed the cattle being driven.

Testifying in his own behalf, appellant made statements raising the issue of alibi. He introduced several witnesses who gave testimony supporting his defense.

Appellant timely and properly excepted to the charge of the court for its failure to submit an instruction on the law of circumstantial evidence. We think the trial court fell into error in declining to amend the charge. There was no direct evidence that appellant took the cattle from the possession of Mr. Moorhouse in the McFaddin pasture, where they were ranging. It is true that the state's evidence showed appellant to be in possession of the cattle in the Craig pasture. However, in cases of theft proof of possession of property recently stolen, which is unexplained, or proof of such possession explained when the explanation does not admit the taking of the property from the person in whom possession is laid, is but a circumstance, and if there is no direct evidence of such taking, a charge on circumstantial evidence is required. Branch's Annotated Penal Code, § 2478; Martin v. State, 32 Tex. Cr. R. 441, 24 S. W. 512. We quote from Branch's Annotated Penal Code, supra, as follows:

"If the main fact is proved as a matter of inference from other facts in evidence, the case rests wholly, in a legal sense, upon circumstantial evidence. In cases of theft the main fact to be proved is the taking from the possession of the person in whom possession is laid, and if there is no direct evidence of such taking — the main fact — a charge on circumstantial evidence is required."

In support of the text many authorities are cited, among them being Ward v. State, 10 Tex. App. 297; Goode v. State, 56 Tex. Cr. R. 418, 120 S. W. 199; Green v. State (Tex. Cr. App.) 34 S. W. 283.

The judgment is reversed and the cause remanded.

PER CURIAM.

The foregoing opinion of the Commission of Appeals has been examined by the judges of the Court of Criminal Appeals and approved by the court.

On State's Motion for Rehearing.

MORROW, Presiding Justice.

In Webster's New International Dictionary, the word "juxtaposition" is defined as follows: "A placing or being placed in nearness or contiguity; or side by side; as a juxtaposition of words."

As indicated in the state's brief, the expression has been used in several decisions of this state, notably Baldwin v. State, 31 Tex. Cr. R. 589, 21 S. W. 679, 680; Cabrera v. State, 56 Tex. Cr. R. 141, 118 S. W. 1054; Davis v. State, 98 Tex. Cr. R. 643, 267 S. W. 513. In the Baldwin Case, supra, which is stressed by counsel for the state, the facts are as follows:

"The missing hogs were tracked a short distance from the place at which they were taken, and discovered in the possession of defendant and his brother, who were driving them, and who drove them on home, and butchered them. While no witness saw defendant actually take possession of the hogs, yet the criminative circumstances are in such `juxtaposition to the main fact' that the omission to give the charge was not calculated to injure defendant's rights. Montgomery v. State (Tex. Cr. App.) 20 S. W. 926. The issues of the case were properly submitted by the court in the charge given. The evidence is cogent, and sustains the conviction."

Both the meaning of the word and its use in the decisions support the view that is reflected in the decision of the present appeal, namely, that the circumstances inculpating the accused must be of a degree of cogency which characterize them, as applied to the particular case, as equivalent to direct evidence. Obviously, an analysis of each case is incumbent upon the court, both the trial and the appellate, to determine from the facts in evidence whether the proof is direct or circumstantial. While there seem to be some cases to the contrary,...