Montgomery v. State
| Decision Date | 11 January 1893 |
| Citation | 20 S.W. 926 |
| Parties | MONTGOMERY v. STATE. |
| Court | Texas Court of Criminal Appeals |
Appeal from district court, Llano county; W. M. ALLISON, Judge.
Frank Montgomery was convicted of hog theft, and appeals. Reversed.
Leigh Burleson, for appellant. R. L. Henry, Asst. Atty. Gen., for the State.
At Austin the judgment in this case was affirmed, without written opinion. Appellant moved for and obtained a rehearing, and we are of opinion that this court erred in affirming the judgment. The state relied alone upon circumstantial evidence for a conviction. Upon the trial the learned judge omitted to state to the jury the rules governing in such a case. Appellant did not object to the charge at the time, because of the omission, but assigns same for error. This court, in quite a number of cases, holds, in such a case, the omission fundamental error. In this holding, we think we have erred. If the criminative circumstances are in close juxtaposition to the main fact, the omission may not be calculated to injure the rights of the accused. To illustrate: A watch was seen in a drawer at 10 o'clock. The accused is discovered, at 10 minutes past 10, leaving the room, with the watch, and, when his possession is challenged, fails to explain. This is a case of circumstantial evidence. The court fails to submit to the jury the rules applicable thereto. The defendant fails to object because of the omission, but relies upon same for a reversal of the judgment. In such a case, we will not reverse. The case in hand is not such a one. The hogs were taken perhaps half a mile or more from the place at which they were found. Appellant was present with others who stole them, and, when discovered in possession of the hogs, ran off with the other persons. If appellant ran because of his guilt, then his flight was a cogent fact against him. But, conceding the flight, it was not positive evidence of the taking. It was as consistent with receiving or guilty connection with the transaction after the theft as with the original taking. We are of opinion that the court committed reversible error, under the facts of this case, in failing to explain to the jury the rules governing cases depending purely upon circumstantial evidence. For this error the judgment is reversed, and the cause remanded. Judges all present and concurring.
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