Johnson v. State

12 Tex. Ct. App. 385

• Court: Court of Appeals of Texas
• Decided: July 1, 1882
• Status: Published

Opinion

Hurt, J.

The appellant was convicted of the theft of a mare. He moved for a continuance of the case; which, motion was overruled. In his motion for a new trial this ruling of the court was made a ground for a new trial. We are of the opinion that a new trial should have been granted.

The only criminative fact against defendant was recent possession of the mare, an estray. This was explained by defendant, he stating that he had purchased the mare from one Sam Harrell. The State proved that there was such a man as Sam Harrell, and that he had lived in that county, but had moved off. That this explanation was reasonable cannot be questioned. This being the case, to convict, the State (relying upon recent possession alone) must prove this explanation false; to do this there was no attempt made whatever. Perry v. State, 41 Texas, 483; Thompson v. State, 43 Texas, 268; McCoy v. State, 44 Texas, 616; Hannah v. State, 1 Texas Ct. App. 578; Garcia v. State, 26 Texas, 209.

The verdict of the jury was not supported by the evidence, and upon this ground also a new trial should have been granted. (The Reporters will give the evidence.)

The judgment is reversed and the cause remanded.

Reversed and remanded.