Cortez v. State
| Decision Date | 03 June 1903 |
| Parties | CORTEZ v. STATE. |
| Court | Texas Court of Criminal Appeals |
Appeal from District Court, Atascosa County; E. A. Stevens, Judge.
Gregorio Cortez was convicted of horse theft, and he appeals. Reversed.
B. R. Abernethy, for appellant. Howard Martin, Asst. Atty. Gen., for the State.
Appellant was convicted of horse theft, and his punishment assessed at confinement in the penitentiary for a term of two years. This conviction depended solely upon circumstantial evidence. The horses disappeared from the owner's possession at night. In the same neighborhood, perhaps the same night, two other horses also disappeared. The state undertook to prove that four Mexicans were seen in possession of these horses, and quite a deal of testimony and hearsay statements were introduced, tending to show appellant was one of these four Mexicans. There was no eyewitness to the taking. Appellant's connection with and possession of the property, if any, was a day or two afterwards, going in the direction of Karnes county.
This brings in review two assigned errors: First, the court erred in the following portion of his charge: "In this case the state has introduced evidence tending to prove the theft of other property than that alleged in the indictment to have been stolen at the same time and place." The court then proceeds to instruct the jury for what purpose this testimony could be used. It is contended that this excerpt of the charge is on the weight of the testimony. This contention, under the decisions, is correct. Reese v. State (Cr. App.) 68 S. W. 283, 5 Tex. Ct. Rep. 34.
The second error assigned is that the court should have charged the law applicable to circumstantial evidence. This position is also well taken. The state's case is one of possession of recently stolen property. Under this state of facts, the decisions are unbroken that it is a case of circumstantial evidence, and requires the court to charge the law applicable thereto.
It is not necessary to discuss the refusal of the court to continue the case, because on another trial it may arise under different circumstances. In fact, the witnesses may be present. It is also unnecessary to discuss the application for change of venue, for it may not arise on another trial.
For the errors discussed, the judgment is reversed and the cause remanded.
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