Poston v. State

• Citation: 35 S.W. 656
• Parties: POSTON v. STATE.
• Decision Date: 06 May 1896
• Court: Court of Appeals of Texas. Court of Criminal Appeals of Texas

35 S.W. 656

POSTON v. STATE.

Court of Criminal Appeals of Texas.

May 6, 1896.

Appeal from district court, Coryell county; J. S. Straughan, Judge.

Bill Poston was convicted of theft, and appeals. Reversed.

McDowell & Sadler, for appellant. Mann Trice, for the State.

HURT, P. J.

Conviction for theft of a yearling. The yearling was taken on the 15th day of May, 1895. The state claims that the yearling was seen in the possession of the appellant the latter part of May or the first of June, 1895. No person saw the accused take the yearling. The conviction in this case depends alone upon circumstantial evidence. The court failed to submit the law applicable to such a case. Counsel for the appellant moved in the motion for a new trial, that he be granted a new trial because of the failure of the court to instruct the jury upon circumstantial evidence. We have held that when the circumstances were in such close juxtaposition to the main fact, in the absence of an exception to an omission to charge as above, we would not reverse. In this case, however, we are of opinion that it was the duty of the court to submit to the jury the rules by which they should be governed in reaching a conclusion upon such testimony, and that a new trial should have been granted. We are also of the opinion that upon another trial the court should submit to the jury the first special instructions requested by the appellant, as contained in bill of exceptions No. 1. Because the court failed to submit to the jury the law by which the jury should be governed, the case depending upon circumstantial evidence, the judgment is reversed, and the cause remanded for another trial.