Roy v. State

• Decision Date: 06 April 1895
• Citation: 30 S.W. 666
• Parties: ROY v. STATE.
• Court: Texas Court of Criminal Appeals

30 S.W. 666

ROY v. STATE.

Court of Criminal Appeals of Texas.

April 6, 1895.

Appeal from district court, McLennan county; S. R. Scott, Judge.

Manuel Roy was convicted of theft, and appeals. Reversed.

Richard I. Munroe, for appellant. Mann Trice, Asst. Atty. Gen., for the State.

DAVIDSON, J.

Appellant was convicted of theft of seed cotton. The evidence discloses that at night, and from a field, about 1,000 pounds of seed cotton was taken by two or more persons, and hauled away in a wagon. Wagon tracks led from the scene of the theft to the residence of appellant, where a wagon was found, with evidence indicating that it had been used very recently. The facts strongly lead to show that it was the vehicle used by the thieves in conveying the cotton from the place of the theft. The owners of the stolen cotton found cotton in appellant's house, but testified they could not identify it, and could not claim it, and in amount it was much less than the quantity stolen. They said to appellant that his wagon had hauled away their cotton. He became angered, and asked if they intended to charge him with the theft, and in reply received a negative answer. Testifying in his own behalf, appellant denied the theft and all knowledge of it. The court charged the jury that if they believed the property "alleged in the indictment to have been stolen, if stolen, was recently thereafter found in the possession of the defendant, and that the circumstances connected with his possession when first called upon were of such a character as to demand of him an explanation of his possession, and he failed or refused to make such explanation, then I charge you that, before you could be warranted in finding him guilty from such circumstances of possession alone, you must be satisfied that his possession was personal, was exclusive, was recent, was unexplained, and that it involved a distinct and conscious assertion of property by the defendant; that, if either of these constituents are wanting, the defendant is entitled to be acquitted." Error is assigned upon this charge, and it was urged as a ground for new trial in the court below. We have stated the evidence in this connection, and, as the record is presented to us, there is no evidence that appellant was seen in possession of the stolen cotton. That he may have stolen the cotton the night before might be inferred from the fact that a wagon was traced from the scene of the theft to his house, and is a circumstance against...