Pollard v. State

• Decision Date: 21 April 1894
• Parties: POLLARD v. STATE.
• Court: Texas Court of Criminal Appeals

26 S.W. 70

POLLARD v. STATE.

Court of Criminal Appeals of Texas.

April 21, 1894.

Appeal from Dallas county court; T. F. Nash, Judge.

Tom Pollard was convicted of theft, and appeals. Reversed.

Kearby & Muse, for appellant. R. L. Henry, Asst. Atty. Gen., for the State.

DAVIDSON, J.

Conviction was had in this case for receiving and concealing stolen property. Defendant was not in actual possession of the plow. It was found in his wagon, which was being driven by Brooks Pollard and Dullivan. Defendant denied theft of the plow, and any knowledge of the fact that a stolen plow was in the wagon. He was at the time riding 15 or 20 steps in rear of the wagon, which was being driven along the public road. In this connection the court charged the jury: "Possession of recently stolen property is presumptive evidence of the guilt of the possessor, but such presumption may be strong or weak, according to the circumstances of the case; and if an explanation is made, if it is natural, reasonable, and probably true, it operates to relent the presumption of guilt arising from the possession of the property; and in such case, if such explanation be not shown to be false, further evidence of the defendant's guilt is required to warrant conviction." This charge was excepted to on several grounds. It was clearly erroneous, and upon the weight of the evidence. Possession is but a circumstance to be considered by the jury along with the other evidence in the case. To warrant a presumption of guilt from possession alone, such possession must be recent, personal, and unexplained, and must involve a distinct, conscious assertion of property by the accused. While an unexplained possession of property recently stolen may justify a verdict, yet the court would not be authorized to order a conviction, or to charge them, as a presumption from the evidence, that he is guilty; and to authorize a conviction under such a state of case the unexplained possession is a sine qua non. Again, the "reasonable account" is dependent upon the possession of the property. If there be no possession, there should be no explanation of possession, for there is nothing to explain. Under this state of case it would not be proper to submit the question of reasonable account of the possession of property, recently stolen, because the issue is not presented by the evidence. It is not a part of the case. It is not always proper to instruct the jury in regard to the account given by the accused of his possession of the stolen property, even when he is in actual possession at the time of the making of the statement. Such charge may lead to a conviction, not because of guilt, but because the jury have found the account given to be false. An apparently reasonable account may be proved false, while an apparently unreasonable account may be true. One may not be more conclusive of innocence than the other is of guilt. They are questions of fact to be considered with the circumstances of the case. The charge was not only upon the weight of the testimony, but threw the burden of...