Preston v. State

• Decision Date: 08 March 1944
• Docket Number: No. 22781.,22781.
• Citation: Preston v. State, 178 S.W.2d 522, 147 Tex.Cr.R. 79 (Tex. Crim. App. 1944)
• Parties: PRESTON v. STATE.
• Court: Texas Court of Criminal Appeals

178 S.W.2d 522

PRESTON v. STATE.

No. 22781.

Court of Criminal Appeals of Texas.

March 8, 1944.

Appeal from Walker County Court; E. C. Benge, Judge.

Jack Preston was convicted of the theft of a radio, and he appeals.

Reversed and remanded.

Reginald Bracewell and A. T. McKinney, both of Huntsville, for appellant.

Ernest S. Goens, State's Atty., of Austin, for the State.

BEAUCHAMP, Judge.

Appellant was convicted of the theft of a radio and assessed a fine of $250 and ten days in jail.

The evidence in this case is insufficient to sustain a conviction. Reliance is had solely upon possession of the property and this possession was first proven to be fifteen months after the property had been stolen. In explanation he claims to have purchased the radio from "a tree army man". There is no evidence in the case to support the circumstance of possession. From Branch's Ann.P.C., Section 2463, we quote with approval the following: "To raise a presumption of guilt from the circumstances alone of possession of property recently stolen, defendant must be shown to have been in possession thereof recently after the theft."

Fifteen months is not "recently". See Yates v. State, 37 Tex. 202 (Bed-clothing— five months); Bragg v. State, 17 Tex.App. 219, 221 (Horse—five and one-half months); Bean v. State, 24 Tex.App. 11, 5 S.W. 525 (Mare—eleven months); Tolliver v. State, 25 Tex.App. 600, 8 S.W. 806 (Coat—one year); Flores v. State, 26 Tex.App. 477, 9 S.W. 772 (Mule—eleven months); Menchaca v. State, 58 Tex.Cr.R. 198, 125 S.W. 20 (Jewelry—three and one-half months).

It will not be necessary to discuss other questions raised by this appeal.

The judgment of the trial court is...