Wilkerson v. State

2 S.W. 857, 21 Tex. Ct. App. 501, 1886 Tex. Crim. App. LEXIS 182

Opinion

White, Presiding Judge.

Considered in the light of the testimony adduced at the trial, the verdict and judgment in this case are against the weight of evidence; and when, in addition' to this fact, the affidavit of the absent witness, Garrett, in support of the motion for a new trial, is also considered, we are clearly of opinion that the court erred in overruling the said motion.

Opinion delivered June 9, 1886.

As shown by the evidence, the defendant’s possession of the alleged stolen animal was by virtue of a bona fide purchase and bill of sale from one Garrett, and if the animal really belonged to Hill, the alleged owner, then Garrett simply made a mistake when he sold her to defendant, believing her to be his own. Garrett, who reached the court after the trial and conviction, swears, in his affidavit supporting the motion for a new trial, to a state of facts which throws the entire blame, if any, upon himself, and wholly and entirely exonerates defendant from any blame whatsoever, much less any criminality in the transaction.

With the record as presented to us, we do not hesitate to say that the verdict and judgment are against the evidence, and the court should have set them aside, and granted a new trial.

The judgment is reversed and the cause remanded.

Reversed and remanded.