Garcia v. State
| Decision Date | 01 January 1862 |
| Citation | 26 Tex. 209 |
| Parties | FELIPE GARCIA v. THE STATE. |
| Court | Texas Supreme Court |
The want of consent of the owner to the taking of his property alleged to have been stolen is an essential ingredient of the crime of theft; and unless proved, the commission of the offense cannot be inferred.
Though possession of stolen property, especially if recent after the commission of the theft, is presumptive evidence of the guilt of the possessor; yet, the mere possession has never been held to establish the caption and asportation of the property without the consent of the owner. A verdict of guilty, therefore, unsustained by any other evidence than the fact of the mere possession of the property stolen, is not supported by the evidence, and a new trial should have been granted.
Where the party found in possession of stolen property gives an unreasonable or improbable explanation of his possession of it, the onus of proving its truth lies upon him; but if his explanation is natural and probable, and satisfactorily accounts for his possession of the property, it devolves, as a general rule, upon the state to show that it is false.
Indictments under article 765 of the Penal Code must allege the possession from which the stolen animals were taken; and for a want of such an allegation, a motion in arrest of judgment should be sustained.
APPEAL from Bexar. Tried below before the Hon. Thomas H. Stribling.
The appellant and one Achilles Deal were indicted for the theft of two mules, the property of Alfred M. Rowlett. A verdict of guilty being found, the defendant moved for a new trial, which was refused. Thereupon, he moved in arrest of judgment, assigning for cause, that “the indictment does not allege the property in the possession of any one at the time it was taken.” This motion also was overruled, and the defendant sentenced, according to the finding of the jury, to five years in the penitentiary.
The other facts appear in the opinion.
Attorney General, for appellee.
The taking of the property without the consent of the owner is an essential ingredient of the offense, for which the appellant is indicted. And unless this is proved, we cannot infer that any offense has been committed. Possession of stolen property, especially if recently after the commission of the theft, has always been regarded as presumptive evidence of the guilt of the possessor. But it has never been held that the mere possession of property is evidence of its caption and asportation without the owner's consent. Although the agent of the owner was examined as a witness, it does not appear from the record that there was even an effort made by the state to prove that the...
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State v. Slusher
...testifies in person he must say directly that the property was taken without his consent. [Wilson v. State, 12 Tex.App. 481; Garcia v. State, 26 Tex. 209; Hunt State, 231 S.W. l. c. 776.] The Supreme Court of Nebraska, however, has held that although the owner of the property testifies in p......
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State v. Yerger
...threw the burden of dispoving this account on the prosecution. Jones v. State, 30 Miss. 653; Belot v. State, 36 Miss. 96; Garcia v. State, 26 Tex. 209; Stokes v. State, 58 Miss. 677; Grade's case, 12 Wis. 591; Hall's case, 8 Ind. 440; Perry v. State, 41 Tex. 488. It was the duty of the cour......
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Albritton v. State
... ... the owners, or of any other person ... Underhill ... on Criminal Evidence (2d Ed.) § 295, says: ... 'The ... nonconsent of the owner must be proved, as it cannot be ... presumed from the taking'-citing State v ... Storts, 138 Mo. 127, 39 S.W. 483; Garcia v ... State, 26 Tex. 209, 210, 82 Am. Dec. 606; Wilson ... v. State, 12 Tex.App. 481, 487 ... If the ... absence of the owner is satisfactorily accounted for, ... 'his nonconsent may be proved by circumstantial evidence, ... provided the circumstances are such as to exclude every ... ...
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Leslie v. State
...and credibility. Dillon v. People, 1 Hun, 670, 4 Thomp. & C. 203; Jones v. State, 30 Miss. 653; Price v. Com., 21 Grat. 846; Garcia v. State, 26 Tex. 209; Reg. Crowhurst, 47 E. C. L. 370; Belote v. State, 36 Miss. 96; Blaker v. State, 130 Ind. 203, 29 N.E. 1077. The seventh assignment of er......