Florez v. State

Court of Appeals of Texas

Florez v. State

9 S.W. 772, 26 Tex. Ct. App. 477, 1888 Tex. Crim. App. LEXIS 211

CourtCourt of Appeals of Texas

DecidedNovember 14, 1888

DocketNo. 3023

StatusPublished

Cited by3 cases

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Florez v. State, 9 S.W. 772, 26 Tex. Ct. App. 477, 1888 Tex. Crim. App. LEXIS 211 (Tex. Ct. App. 1888).

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Opinion

White, Presiding Judge.

When missed by the owner, in November, 1884, the mule was a little over one year old; when recovered by him in April, 1887, it was four years old. Defendant’s bill of sale under which he claimed to have acquired possession of the mule is dated the fifteenth of October, 1885. Prior to this latter date there is no evidence showing any connection of any kind whatsoever on the part of the defendant with the mule. There is no evidence showing who took the mule in 1884, eleven months before defendant was first seen in possession of it, if indeed the animal of which he acquired possession ostensibly by means of the bill of sale was the alleged stolen animal. This possession of defendant, then, is the main circumstance' upon which the prosecution relies to establish that defendant took or stole the mule eleven months prior thereto.

Possession of property, to raise a presumption of guilt, must be recent. Eemote possession of property of this character, which readily passes from one person to another, does not raise a presumption of guilt; it is but a circumstance stronger or weaker in proportion to its remoteness from the original taking. It was a question in this case as to whether the facts established a case of recent possession or not, and the question of recent possession should have been submitted to the jury under proper instructions as to the law applicable to such possession. (Lehman v. The State, 18 Texas Ct. App., 174; Curlin v. The State, 23 Texas Ct. App., 681; Boyd v. The State, 24 Texas Ct. App., 570; Willis & Boyd v. The State, Id., 587; Romero v. The State, 25 Texas Ct. App., 394; Matlock v. The State, Id., 654;Buchanan v. The State, ante, 52.) No instruction of such a character nor [482]*482applicable to the most important phase of the case is found in the charge of the court to the jury.

Opinion delivered November 14, 1888.

Moreover, we are of opinion that the evidence as shown by this record is insufficient to sustain the verdict and judgment. The judgment is reversed and the cause remanded.

Reversed and remanded.

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White, Presiding Judge.

When missed by the owner, in November, 1884, the mule was a little over one year old; when recovered by him in April, 1887, it was four years old. Defendant’s bill of sale under which he claimed to have acquired possession of the mule is dated the fifteenth of October, 1885. Prior to this latter date there is no evidence showing any connection of any kind whatsoever on the part of the defendant with the mule. There is no evidence showing who took the mule in 1884, eleven months before defendant was first seen in possession of it, if indeed the animal of which he acquired possession ostensibly by means of the bill of sale was the alleged stolen animal. This possession of defendant, then, is the main circumstance' upon which the prosecution relies to establish that defendant took or stole the mule eleven months prior thereto.

Possession of property, to raise a presumption of guilt, must be recent. Eemote possession of property of this character, which readily passes from one person to another, does not raise a presumption of guilt; it is but a circumstance stronger or weaker in proportion to its remoteness from the original taking. It was a question in this case as to whether the facts established a case of recent possession or not, and the question of recent possession should have been submitted to the jury under proper instructions as to the law applicable to such possession. (Lehman v. The State, 18 Texas Ct. App., 174; Curlin v. The State, 23 Texas Ct. App., 681; Boyd v. The State, 24 Texas Ct. App., 570; Willis & Boyd v. The State, Id., 587; Romero v. The State, 25 Texas Ct. App., 394; Matlock v. The State, Id., 654;Buchanan v. The State, ante, 52.) No instruction of such a character nor [482]*482applicable to the most important phase of the case is found in the charge of the court to the jury.

Opinion delivered November 14, 1888.

Moreover, we are of opinion that the evidence as shown by this record is insufficient to sustain the verdict and judgment. The judgment is reversed and the cause remanded.

Reversed and remanded.

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9 S.W. 772, 26 Tex. Ct. App. 477, 1888 Tex. Crim. App. LEXIS 211, Counsel Stack Legal Research, https://law.counselstack.com/opinion/florez-v-state-texapp-1888.

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