Smith v. State

• Decision Date: 21 May 1902
• Citation: 68 S.W. 510
• Parties: SMITH v. STATE.
• Court: Texas Court of Criminal Appeals

68 S.W. 510

SMITH v. STATE.

Court of Criminal Appeals of Texas.

May 21, 1902.

Appeal from district court, Falls county; Sam R. Scott, Judge.

Peter Smith was convicted of the theft of a hog, and appeals. Reversed.

Rice & Bartlett, for appellant. Robt. A. John, Asst. Atty. Gen., for the State.

BROOKS, J.

Appellant was convicted of the theft of a hog, and given two years in the penitentiary. This is the second appeal of this case. See Smith v. State (Tex. Cr. App.) 56 S. W. 54.

Appellant's first assignment of error is that the court erred in charging upon the law of recent possession of stolen property, and appellant's explanation of his alleged possession, because the evidence did not warrant such a charge, in this: that the question of possession of the identical hog charged to have been stolen was never admitted, but was contested, by defendant, and no explanation was made by defendant. The evidence shows that appellant's contention is correct. It is made to appear that, at the time the hog meat was found in his possession in his smokehouse, defendant claimed the meat as his, and attempted to offer physical force against its being taken away from him. It will be noted in the opinion on the former appeal that appellant merely insisted that the charge on recent possession was erroneous, and the objection now made was not urged on the former appeal. It is a well-settled proposition of law, supported by a long line of authorities, that, where the identical property charged to have been stolen is not found in the possession of appellant, then it is error to charge upon the law of recent possession of stolen property. Mayfield v. State, 23 Tex. App. 649, 5 S. W. 161; Baldwin v. State, 31 Tex. Cr. R. 589, 21 S. W. 679; Roy v. State, 34 Tex. Cr. R. 301, 30 S. W. 666.

Appellant also insists that the evidence is insufficient to support the verdict. The testimony on the identification of the property as the property of prosecutor can be best stated in his own language, as follows: "Yes; I swear positively that the meat found at Tom Moore's was my red sow, because it had a dent in the side, and had some red hair upon it. We then arrested Tom Moore on this charge, but did not take him to defendant's house. We left him in charge of Mr. Peacock, at the store. I went with Marlin, the constable, to defendant's house. Upon our arrival there I never asked him anything, but we went into the smokehouse, and found some meat there. We did not find all of the hog. ...