Thomas v. State

13 Tex. Ct. App. 493, 1883 Tex. Crim. App. LEXIS 36

Opinion

White, P. J.

Appellant was convicted in this case upon evidence wholly circumstantial. A rule of practice settled in this State by decisions which have been iterated and reiterated, is that where the inculpatory evidence is purely circumstantial the charge of the court must expound to the jury the nature and conclusiveness of that character of evidence, to warrant a conviction upon it. It is part of the law applicable to the case, and cannot be omitted from the charge without causing error fatal to the conviction. (Gonzales v. The State, 12 Texas Ct. App., 657, and authorities cited.)

In his motion for new trial appellant called the attention of the court to this omission in the charge, and the motion should have been granted. (Bishop v. The State, 43 Texas, 390.)

Because the charge did not present the law of the case, the judgment is reversed and the cause remanded.

Reversed and remanded.

Opinion delivered February 17, 1883.