Taylor v. State

Citations

• 27 Tex. Ct. App. 463
• 11 S.W. 462
• 1889 Tex. Crim. App. LEXIS 64

Syllabus

<p>1. Yhebt—Circumstantial Evidence—Charge os the Court.—The factum probandum of theft is the taking of the property. If that fact is proved merely as a matter of inference from other facts in evidence, and not by an eye witness, the case rests wholly upon circumstantial evidence; and the failure of the trial court to charge the jury upon the law of circumstantial evidence is material error,</p> <p>3. Same—Possession op Recently Stolen Property is not positive evidence of theft, but merely a circumstance tending to prove theft, and is therefore in its character simply circumstantial evidence; and, when alone relied upon by the prosecution, demands of the trial court a charge upon the law of circumstantial evidence.</p> <p>3. Same.—If the inculpatory facts in a theft ease consist alone of recent possession of stolen property, explained by the accused when first challenged, it imposes upon the court the imperative duty of explaining to the jury in its charge the law applicable to such recent possession and explanation.</p> <p>4. Practice—Privilege of Counsel.—While on the stand the sheriff' was asked by the prosecuting attorney if he did not arrest the defendant several years ago for burglary. The defense objected, and the prosecuting attorney remarked, in the hearing of the jury, that he proposed to “prove by the sheriff that defendant was arrested two or three years ago for a burglary committed in Dallas county, at the-same time and place as he is now charged with theft. ” Held, that such proof was not competent, and the trial court should so have instructed the jury.</p>