Miller v. State

Citations

• 18 Tex. Ct. App. 34
• 1885 Tex. Crim. App. LEXIS 59

Syllabus

<p>1. Theft — Evidence — Declarations — Charge of the Court.—In this State it is well settled that the statement of a defendant with regard to the character of his right to stolen property found in his possession, if reasonable and probable, and explanatory of his possession, and made when he was first found in possession, imposes on the State the onus of showing the falsity of the explanation. And when the evidence invokes this legal principle, it is part of the law of the case, and it is incumbent on the trial court to give it in charge to the jury.</p> <p>3. Same.— In a trial for theft of a mule, a State’s witness testified that the defendant traded to him the animal, and told him that he, the defendant, got it from one McBee, etc. The State neither produced McBee as a witness, nor accounted for its failure to do so. Held, that this explanation was reasonable and probable, and devolved on the State the burden of proving its falsity, and on the trial court the duty of so instructing the jury.</p> <p>3. Evidence — Practice.— When direct and positive proof is attainable, circumstantial evidence cannot be resorted to; nor is secondary evidence competent when it is disclosed that better and more satisfactory evidence of the contested fact is attainable, and it is neither produced nor accounted for.</p> <p>4. Theft—Fact Case.— See evidence held insufficient to sustain a conviction for theft of a mule.</p>