Hart v. State

• Decision Date: 19 October 1904
• Citation: 82 S.W. 652
• Parties: HART v. STATE.
• Court: Texas Court of Criminal Appeals

82 S.W. 652

HART v. STATE.

Court of Criminal Appeals of Texas.

October 19, 1904.

Appeal from District Court, McLennan County; Sam R. Scott, Judge.

Jim Hart appeals from a conviction. Reversed.

Taylor & Gallagher, for appellant. Howard Martin; Asst. Atty. Gen., for the State.

HENDERSON, J.

Appellant was convicted of burglary in the nighttime, and his punishment assessed at confinement in the penitentiary for a term of two years; hence this appeal.

Appellant excepted to the following portion of the court's charge: "You are instructed that if you believe from the evidence in this case that the property alleged to have been stolen was so stolen, and recently thereafter was found in the possession of the defendant, and that the defendant, when thus found in the possession of the same, gave an explanation of his said possession which appears reasonable and probably true, and accounted for his possession in a manner consistent with his innocence, then, before you could be warranted in considering such circumstance as evidence against the defendant in this case, you must be satisfied from the other evidence in the case, beyond a reasonable doubt, that the other testimony in the case establishes the falsity of the explanation so made by the defendant. And if the state has failed to satisfy you that such explanation was false, then you will acquit the defendant. But in this connection, I further instruct you that the state is not bound to prove the falsity of the defendant's explanation by direct or positive testimony, but that the same may be shown to be false by any evidence sufficient to satisfy your minds that it was false." It is insisted by appellant that this is a charge on the weight of the testimony, in that it authorizes the conviction of defendant on the fact of his being found in possession of recently stolen property, and his explanation, and then puts the burden on the defendant to show the falsity of his explanation, and, if the explanation is false, it authorizes the jury to convict on the falsity thereof. Furthermore, that it authorizes the jury to find the falsity of such explanation by circumstantial evidence, and then fails to give the jury the rule by which to measure circumstantial evidence. A charge of this character, though not exactly the same in phraseology, has frequently been condemned by this court. Wheeler v. State, 34 Tex. Cr. R. 350, 30 S. W. 913; Hayes v. State, 36 Tex. Cr. R. 146, 35 S. W. 983; Scott v. State (Tex. Cr. App.) 36 S. W. 276; Dyer v. State (Tex. Cr. App.) 77 S. W. 456. In Wheeler's Case, supra, the matter of a correct charge upon this subject was discussed, and a form was there laid down which has been subsequently approved in a number of cases. It seems in this case that the Wheeler Case was not followed, but instead the vices pointed out in the charge in that case and other cases above referred to appear to have been adopted. As we view the charge, the effect thereof was to tell the jury that they could consider the evidence of possession as a circumstance against defendant in case the other testimony showed the same to be false; and the effect of instructing the jury to acquit defendan...