[No. 1959.]

#### Dick Schultz *v.*The State.

1. Theft—Evidence.— It is essential to a conviction for theft under an indictment which alleges the ownership of the stolen property to be in one person, and the possession to have been in another for the owner, that the State establish the non-consent both of the owner and the possessor.

2. Same.— Non-Consent of the owner to' the taking of the property may, in a,' trial for such theft, be proved by showing circumstances which absolutely exclude every reasonable presumption that he gave consent to the taking. Such proof, however, is not available if direct or positive proof is accessible, provided such objection is interposed at the time the circumstantial evidence is offered, and, to be entitled to consideration on appeal, the objection must appear by proper bill of exception.

*3093. Same — Charge of the Court.—Possession of Recently Stolen Property, even when unexplained, is but circumstantial evidence of guilt in a theft case, and if the State relies solely upon that fact, the defendant becomes entitled to a proper charge upon circumstantial evidence. In limiting its charge upon circumstantial evidence in this case, and in failing to correctly apply it to the case generally, the charge of the court was erroneous. See the opinion on this point.

Appeal from the District Court of De Witt. Tried below before the Hon. H. C. Pleasants.

The appellant was convicted under an indictment which charged him with the theft of a horse, the property of one Tom Holt, which, said horse was taken from the possession of John Anders, who held the said horse for the said Holt, in De Witt county, Texas, on the 24th day of September, 1884. The penalty assessed was a term of five years in the penitentiary.

John Anders testified, for the State, in substance, that in the summer of 1884 Tom Holt, a sheep trader, left in his possession, for safe keeping, a bay pony branded with the letters S E E on the left thigh. The witness turned the pony upon the range with his own horses, from which range the said pony disappeared late in the summer or early in the fall. He was taken by some one unknown to the witness, and without the witness’s consent. A short time before the pony disappeared the defendant asked the witness who owned a bay pony branded SEE, then running on the range near the Schleicher bridge. Witness told him that he, witness, did to all intents and purposes, as Tom Holt, the actual owner, had left the animal in his possession to be used as he pleased. Holt was on his way out west to buy sheep when he left the pony in witness’s charge. The pony then had a sore back, and was unfit for use. About two months after the pony disappeared, Holt applied to the witness for the pony to use on another trip out west which he was then com templating. Witness did not know Holt’s present whereabouts. Holt owned the horse, and had the legal right to take him or to send another person for him, but witness did not think he would have" done so without giving witness notice. The animal was taken in De Witt county. Witness could not say that the animal sold by defendant to A. W. Evans was the Holt pony.

Jeff White testified, for the State, in substance, that he was the inspector of hides and animals for De Witt county in 1884. On or about the 14th day of September of that year, the defendant applied to witness to inspect a horse he was then selling to A. W. Evans. Witness did so and attested the bill of sale. The animal' *310was a bay pony branded S E E on the left thigh. That transaction .occurred on one of the most public streets of the town of Cuero. lío effort at concealment was made by defendant. Witness did not ask defendant where he got the horse.

A. W. Evans testified, for the State, in substance, that either he or Bonner, with whom he was making upa drove of horses to drive to market, in 1884, bought of the defendant a bay pony branded S E E on the left thigh. The purchase was made and the bill of sale executed on Esplanade street in the town of Cuero.

Mrs. E. E. Johnson, the defendant’s mother, testified in his behalf that, early in September, 1884, while she was staying at defendant’s bouse, she saw the defendant purchase a bay pony branded S E E on the left thigh from Jesse A. Baker, and saw him pay Baker the money for the horse. Baker had previously worked in the neighborhood, and for a time with defendant, as a farm hand. Baker’s residence was in Kerr county, and witness thought he was at home.

Walter Cook testified, for the defense, that he met the man Baker between Cuero and Clinton about-the time of the alleged theft of Holt’s horse. Witness had no personal acquaintance with Baker.

The motion for new trial raised the questions discussed in the opinion.

*E. J. Eamner*and Fly, *Davidson c&*Davidson, for the appellant.

*J. U.*Burts, Assistant Attorney-General, for the State.

White, Presiding Judge.

The indictment alleged the stolen horse to be the property of one Holt, but that it was taken from the possession of one Anders, who was then and there holding possession of the same for Holt, and that it was taken without the consent of Holt ánd without the consent of Anders.

Where the ownership and possession are thus alleged, it is necessary to prove on the part of the State, in order to make out the case, the want of consent both of the owner and the party holding possession for him. *(Bailey*v. *The*State, 18 Texas Ct. App., 427; *Frazier*v. *The*State, id., 434; *Atterberry*v. *The*State, 19 Texas Ct. App., 401; *Williams*v. *The*State, 19 Texas Ct. App., 277.)

Anders, who was a witness upon the stand, proved his own want of consent and stated the facts and circumstances connected with Bolt’s having left the pony in his possession; also that, some month ór more after the pony was stolen, Holt came to witness’s house and *311inquired for his pony, as he wanted to ride him on a trip out west he was then making. Witness did not know where Holt was at the time of the trial. But he says: “Tom Holt was the owner of the pony and had the legal right to take him or send another person for him. But I do not believe he would have done so without giving me notice.”

In a trial for theft the want of the owner’s consent to the taking of the property by the accused may be shown by circumstances which absolutely exclude every reasonable presumption that the owner gave, his consent. *(Rains*v. *The State, 7*Texas Ct. App., 588; *Stewart*v. *The*State, 9 Texas Ct. App., 321; *Spruill*v. *The State,*10 Texas Ct. App., 695; *Wilson v. The State,*12 Texas Ct. App., 481; *Clayton*v. *The State,*15 Texas Ct. App., 348; *Miller*v. *The State,*18 Texas Ct. App., 34.)

But it is insisted that, whilst such proof can be made by circumstantial evidence, circumstantial proof cannot be resorted to so long as positive or direct proof is available. This rule is also settled, provided the party made objection at the time to the proof by circumstantial evidence. Such objection, to avail an appellant in this court, must appear by a proper bill of exception showing that such circumstantial evidence was objected to when tendered on the trial. *(Stewart*v. *The State,*9 Texas Ct. App., 321; *Williams*v. *The State,*19 Texas Ct. App., 277.) In this case no objection was taken or bill of exception reserved to the proof adduced, as above stated, to show Holt’s want of consent; and the charge of the court fully presented the law with regard to proof of want of consent by circumstantial testimony. We cannot see that appellant is in an attitude to make complaint as to this matter.

There is, however, an error of omission in the charge of the court which necessitates a reversal of the judgment. As to the fact of *the taking*of the animal there was no direct or positive proof. It is true that defendant was seen in possession of and actually sold the pony in Cuero some short time after it was missed by the party in possession. This, however, was but recent possession, and recent possession, though under certain circumstances sufficient to establish guilt, is at last but a circumstance, in itself weaker or stronger as the case may be indicative of guilt. *(Lehman*v. *The State,*18 Texas Ct. App., 174.) Possession of recently stolen property, even when unexplained, is but circumstantial evidence of guilt in a theft case, and, the State relying solely upon that fact, the defendant is entitled to a charge upon the law of circumstantial evidenced *(Sullivan*v. *The State,*18 Texas Ct. App., 623.) Whilst *312the court did fully instruct the jury in the law of circumstantial evidence as applicable to proof of non-consent of the owner Holt, there was no application of the rule generally to the case, much less specially as to the question of fraudulent taking,— the proof being entirely circumstantial as to this latter phase of the case.

[Opinion delivered February 13, 1886.]

For error in the charge of the court the judgment is reversed and the cause remanded.

*jReversed and remanded.*