Lopez v. State

• Decision Date: 05 May 1897
• Citation: 40 S.W. 595
• Parties: LOPEZ et al. v. STATE.
• Court: Texas Court of Criminal Appeals

40 S.W. 595

LOPEZ et al. v. STATE.

Court of Criminal Appeals of Texas.

May 5, 1897.

Appeal from district court, Starr county; Stanley Welch, Special Judge.

Manuel Lopez and Leonardo Longoria were convicted of cattle theft, and appeal. Reversed.

Mann Trice, for the State.

DAVIDSON, J.

Manuel Lopez and Leonardo Longoria were convicted of cattle theft, and each given two years in the penitentiary, and appeal.

Several grounds were set up in the motion for a new trial in the court below, alleging error in the rulings of the trial court. With reference to the action of the court in overruling the application for a continuance, it is sufficient to say that a bill of exceptions was not reserved to this ruling of the court; and it may be also stated, with reference to the alleged newly-discovered testimony, that this question cannot arise upon another trial, and, as this case must be reversed upon another ground, it is unnecessary to discuss the ruling of the court with reference to this question.

The court omitted and failed to charge the law applicable to circumstantial evidence. This is relied upon for a reversal of the judgment. Upon an inspection of the statement of facts, we find that the testimony is entirely circumstantial, and consists mainly in tracks which with more or less cogency tend to connect appellants with the killing of the animal in question. Some freshly butchered beef was found at defendants' house, and there is the statement of one of the defendants, Lopez, which tended to show his knowledge of the killing of the animal. No witness saw the animal killed, and no witness undertook to testify that the defendants were ever in charge of the animal, or had possession of it, or were connected with the killing, otherwise than as above stated. Under this state of case, a charge of the law applicable to a case of circumstantial evidence was demanded; and, because it was not given, the judgment is reversed, and the cause remanded.