#### JOHN SCHINDLER vs. THE STATE.

COURT OF APPEALS,

GALVESTON TERM, 1884.

*Prut lid*— Gaxe *Staled.*TJie defendant toa prosecution for .theft under an indictment filed in V. County, pleaded thependencyof.au indictment for the same offense. The court overruled the plea, and the trial proceeded. *Held,*that the court did not err in its action in overruling the plea; that only two special pleas can be made to an indictment, viz : former conviction or acquittal.

*Sarnf.*However, when constitutional rights are involved, the defendant could raise the issue by special plea.

*Charge of the Court.*The case being one of purely circumstatial evidence, wherein the. defendant was found in possession of an animal without a hill of sale, the court charged the jury as follows : “Upon Ihe trial of any person charged with the theft of any cattle, the possession of such stolen animal by the accused without a written hill of sale or transfer containing- a specific description of such animal shall he *prona facie*evidence against the accused that such possession was illegal. *Held,*error. See f:S Texas Ct. App., (i(>3.

*Hnitlence.*See evidence *held*insufficient to support a conviction for theft of an animal.

Opinion by

Hurt, J.

G

This is a conviction for the theft of oxen. An indictment for this offence was filed in the district court of Gonzales county on June 23rd, 1883. On November 1st, 1883, this indictment was filed in Fayette county.

Upon the trial, the defendant pleaded the pending of the indictment in Gonzales county as a reason why he should not be called upon to plead to this indictment filed in Fayette county. To this qilea the district attorney demurred. To the action of the court in sustaining the. demurrer, the defendant excepted, and upon such action assigned, as error, appeals to this court.

Was there error in the action of the court below sustaining' the O demurrer to the defendant’s plea ? We are of the opinion that there was not. Under our code of procedure, there are but two special pleas, to-wit: former conviction or acquittal.

If however, constitutional rights are involved, the defendant would have the right to raise an issue upon them by special plea. We are aware that Burdett v. The State, 9 Texas, sustains this plea of the defendant. But that opinion was delivered before the adoption of our present code.

This is a case of purely circumstantial evidence, and it appears that the defendant was in possession of the oxen without a bill of *662sale. Upon this phase of the case the learned Judge who presided on the trial, charged the jury as follows : “Upon the trial of any person charged with the theft of any cattle, the possession of such stolen animal by the accused without a written bill of sale or transfer containing a specific description of such animal, shall be *prima facie*evidence against the accused that such possession was illegal.” In Garcia v. The State, 13 Texas, Ct. Ap., 665, charges in substance the same as the above were held erroneous. We think the reasoning in those cases sound. The action of the court in overruling the motion to continue or to postpone and the sufficiency of the evidence to sustain the conviction are issues which legitimately arise upon the record, and in order to secure a better understanding of our conclusions thereupon, we deem it necessary to give a condensed statement of the facts proved.

The substance of the testimony of D. L. Nateo, the first witness for the State, was, that he resided in Gonzales county, Texas; that early in the spring of 1883 he lost two oxen, which were taken from their range near his house; that one was a black animal, about five years old, branded with the letter T the down strokes or stems being double; the other was a red bald-faced ox branded and counter branded V2; that he did not remember the ear marks; that when hunting for the animals, he met Mr. Neeley, to whom he described them and asked him to watch for them; that some time later, Neeley sent him word that he had the red ox in his pasture near Flatonia; that he, witness, sent to Flatonia and recovered the red ox; that he had never recovered the black one; that the animals were taken without his knowledge or consent; that he did not know the defendant, John Schindler, and did not know who took the oxen.

Frank Neeley testified, in substance, that about the first day of May, on his way to Gonzales with cattle, he met Ñateo, who described two oxen he had lost and requested witness to keep a lookout for them, agreeing to pay witness ten dollars if he, witness, found them. A few days after the return of the witness to Flatonia, some one asked him if he knew who gave the V 2 brand, to which the witness replied that the *V 2*was Mrs. Vanham’s brand. The party then described the red ox, and the witness then told him whose ox it was, and asked him to bring the ox to him, witness, which he afterwards did. Witness turned the ox into Faire’s pasture, near Flatonia, and sent word to Ñateo, who sent for, and got the animal, *663upon an order of witness on Faire. The witness did not know where the defendant Schindler lived. He had never seen Schindler in possession of Nateo’s oxen.

Witness Cornelson testified, in substance, that he was a butcher at Schulenburg; that he knew the defendant; that sometime in April, 1883, defendant came to him and proposed to sell him two oxen; that he went out to Ernest’s slaughter pen he was using, and found two oxen; that one was a black ox branded T (double down strokes) and the other was a pale red ox, whose brand the witness did not notice; that he bought the black ox, but declined to buy the red one as he was too poor for beef; that he paid the defendant ten dollars down, and told him to go with him to town and he would pay him the remaining fifteen; that defendant excused himself on the plea of sickness in his family, and left, driving the red ox in the direction of his home; that next day the defendant called on witness and received his balance, and executed to the witness a bill of sale. The bill of sale being introduced from the archives of the county clerk’s office, and identified by the witness, read as follows :

“State of Texas, ) Know all men by these presents that I, John Fayette County. *)*Schindler, for and in consideration of the sum of twenty-five dollars ($25,) to me in hand paid by Ling Cornelson, the receipt whereof is hereby acknowledged, have bargained, sold and transferred to the said Ling Cornelson, the following described animal : 1 black ox branded T marked *oa*five years old, to have and to hold unto the said Ling Cornelson the above described animal, with all the right, title and privilege that I had on the first day of May 1883. In witness whereof I have hereunto set my hand and seal, using scroll for seal this the first day of May 1883.

(Signed) • JOHN SCHINDLER.

On his cross examination this witness stated that the butcher pen where the oxen were penned was in the limits of town; that he bought the black ox in the evening and that the defendant drove off the red ox in the day time; that he did not know how far from Schulenburg defendant lived, but had heard that the distance was about four miles.

A witness for the defense testified that defendant lived about four miles from Schulenburg, and that Flatonia is about nine miles west of defendant’s house. In driving cattle from his house to Schulenburg, the defendant would have to travel a public road pretty much all the way.

*664It had been shown that Ñateo lived in Gonzales county, about nineteen miles southwest of Flatonia; that Sehulenburg was twelve miles east from Flatonia, and to go from Sehulenburg to Nateo’s house, the direct route would leave Flatonia three or four miles to the northwest.

When the case was called for trial the defendant made an application to the court for a continuance or for k postponement until some future day of the term, in or^er to enable him to secure the-attendance as witnesses of Frank Andrews, Mrs. Mary Schindler and John Polasek. . The showing as to diligence was in al'l^respccls ample and the application proceeded to allege that by the absent witness, Andrews, he could prove that he purchased the said oxen from said Andrews at his house near Sehulenburg, Texas, on or about the 26th day of April, 1883, and that the ox sold by defendant to the witness, Cornelson, is one of the oxen pin-chased by the defendant from the said Andrews.

By the absent witness, Polasek, he expects to prove that one. day about the last of April, 1883, the said witness saw a man who was a stranger to him, pass his, witness’ house, driving the oxen for ihe theft of which defendant is charged in this indictment; that the said stranger was driving the oxen in the direction of the house, of this defendant, and offered to sell them to the witness; that witness was well acquainted with this defendant, and knew that defendant was not the man who was then driving the oxen as described.

By absent witness, Mrs. Schindler, his wife, defendant expected to prove that On or about the 26th day of April 1883, a man whom she did not know, drove two oxen up to the house where she and-' her husband (this defendant) were. That one of the oxen was the black ox afterwards sold by defendant in Sehulenburg, and the other a red ox; that after considerable talk, this defendant bought the two oxen of the stranger,- placed them in his pasture, which is on a public road, kept them there several days and drove them to Schulenburg to sell them, since which time the witness had never again seen either of the oxen.

It appears that Mrs. Schindler and the witness Andrews, from whom the oxen were claimed to have been purchased, were in attendance on the court as witnesses, but left before the cause was reached, as Mrs. Schindler was advised by the counsel for the de*665fense not to return unless her child improved, her child being very sick.

We will not discuss the materiality or importance of her evidence. That the testimony of the other witnesses was of the greatest- importance to the defendant cannot be questioned. Under the facts of this case, if defendant could show that some other person was in possession of the oxen prior to hiijj possession, this would most evidently meet, the case made by the State. Nor would this fact in the least conflict with the theory of the State. Wo do not think it necessary or required of us to argue this question, it being self-evident .

is this judgment and verdict supported by the evidence ? What is tilo Htatohi case ? Simply this: lieceut possession of stolen property without bill of sale.

Possession of property recently after the theft, *unexplained,*is held to lie *prima, facie*evidence of theft. And this court has held, and still holds, that there may be cases in which these facts would not only constitute a *prima facie*case, but would be sufficient upon which to convict. To be a *prima fu tie*case the property must be stolen by some person. The possession must be recent; the defendant must be called upon to explain, and fail to explain. And before a *prima, fañe*caso can be made and claimed for the State, all of the above facts must oe established by the evidence. That the defendant in this case was in possession of at least one of the oxen, is conceded, but where, in the record, is it shown that he was called upon directly, or circumstantially, to explain his possession.

The record furnishes no information upon this question whatever, and we cannot ¡^resume a fact unless there be facts from which to make, an inference. 9

The case of the State then is, that defendant was in possession of stolen property recently after the theft without a bill of sale. If recent possession of stolen property, unexplained, constitutes a *prima facie*case, does *not possessio?i*without a bill of sale constitute a *prima, facie*case of guilt. If *such possession explained in some cases*constitutes a complete case of guilt, will not such possession, in some cases without a bill of sale, constitute a complete case ? These illustrations proceed upon the supposition that the supposed cases are stripped of all other inculpatory facts. A horse is stolen, and shortly afterwards A is found in possession of the horse. He is *666eharged with the theft, but says nothing and stands mute — makes no attempt at explanation. This conduct would be very inconsistent with his innocence. He would be a very remarkable man indeed, not to attempt an explanation of his possession. But suppose a horse is stolen, and shortly afterwards A is found , in possession without a bill of sale, would the fact that he had a bill of sale be as unnatural, strange and inconsistent with his innocence as under the same circumstances would be a failure to explain ? How often do the most upright and honest men purchase stolen animals and fail to take bills of sale, notwithstanding their possession without a bill of sale is, by the statute, declared illegal ?

Article 4563 of the penal code does not declare that the possession of an animal without a bill of sale fraudulent, but illegal; nor can it be inferred from the said article that the party in possession of said animal without a bill of sale is a thief. We do not believe that the failure to receive a bill of sale of stolen property is as strong and cogent evidence of guilt as the failure of a party in possession of stolen property to explain when called upon.

We have given this record a very careful investigation, and after carefully considering the evidence, we are of the opinion that the verdict and judgment are not sustained by the evidence. Because the court erred in the charge above noted, and because the judgment is not supported by the evidence, the judgment is reversed and remanded.

Reversed and remanded.