Appellant was convicted of the theft of one head of cattle, and his punishment assessed at confinement in the penitentiary for a term of two years; hence this appeal.
Appellant assigns as error the action of the court failing to instruct the jury on circumstantial evidence. We have examined the record carefully and in our opinion the facts of this case demanded such a charge. The evidence, briefly stated, is as follows: Prosecutor, Marnell, lived in Oak Cliff, and owned a Jersey cow. The cow had been turned out on the range a short time prior to November 18, 1902. She ranged about Oak Cliff, but would come home every night. She failed to come up on November 18th and was seen no more by her owner until some time about the 20th of December, when appellant, whose business it seems was that of hunting stray stock and bringing them to their owner, found the cow, according to his evidence, and brought her to prosecutor, who some days previously had offered him a reward if he would find his cow and bring her home. However, the State proved by witness Large that he saw appellant in possession of said cow on November 21st (three days after she was missed by her owner). This witness testifies that he was on his way to school in Oak Cliff and met appellant, Sam Davis, and three other men on horseback in the road where the cow ranged, and Sam Davis was leading her by a rope around her neck; that he asked him what he was doing with the cow, and defendant said he was going to turn her loose on the prairie. He told defendant that she was Marnell's cow, and showed him where Marnell lived, which was about a block away, the house being in plain view. Now, the question arises, *Page 135 did this evidence place appellant in such juxtaposition to the fact of taking, as not to require a charge on circumstantial evidence. We think not. The cow had been missed some three days, which was ample time for her to have gone through several hands; and the fact that the alleged thief was found in broad daylight leading the cow out of her accustomed range, and was seen not more than a block away from the owner's residence, would rather suggest that appellant, if guilty, was more likely guilty of receiving the cow from someone else who had appropriated her than of being the original taker. This is not like the case of Adams v. State, 34 Tex.Crim. Rep.. In that case, the colt had just jumped out of the pasture where it had been placed by its owner, and was seen following the alleged taker, and shortly thereafter the taker was seen by another witness driving said colt. In that case it was held that the facts placed appellant in such juxtaposition to the main fact of taking as not to require a charge on circumstantial evidence. The facts here are stronger than those stated in Montgomery v. State, 20 S.W. Rep., 926, where a charge on circumstantial evidence was held to be necessary. In the view we take of it, the court should have given such a charge, as, from the State's standpoint, the case was one of purely circumstantial evidence. We would further observe that, from the evidence presented in this record, it appears if appellant took the cow with any felonious intent, it was evidently for the purpose of securing a reward for her return, and the court should have instructed upon that issue. Dunn v. State, 34 Tex.Crim. Rep..
In our opinion, the charge of the court fully protected appellant in his defense, to wit, that, if appellant was offered a reward to find the cow, and he sought and found her, he should be acquitted. Because of the failure of the court to give a charge on circumstantial evidence, the judgment is reversed and the cause remanded.
Reversed and remanded.