Conviction for theft of a horse, the alleged property of E.R. Hays.
The State relies upon the following facts for conviction: 1. That some person stole the horse. 2. Recent possession of the horse by appellant, and false explanations of possession made by him. *Page 511
In explanation, when defendant's possession was challenged, he stated, that the horse in question was a colt of an old gray mare which belonged to his father; that he had raised the horse, etc. By all the witnesses who had knowledge of the fact this statement was shown to be false; that in fact the horse belonged to Hays. Appellant, his mother, and Tom Blount swore that in the absence of defendant, George James, father of defendant, purchased the horse, when a colt, from some Mexicans, and gave him to appellant. That appellant took possession of, cared for, broke, and used the horse up to the time when he was taken from him by Johnson for Hays. Appellant denied that he stated to State's witnesses that he had raised the horse, or that he was a colt of the old gray mare. The issue on the trial was, Did defendant take the horse from the possession of Hays, or did he procure him from his father? If he took him from Hays, the facts and circumstances most clearly establish his guilt. On the other hand, if he procured him from his father, if the horse was in fact given him by his father, he did not take him from the possession of Hays, and was not guilty of theft, though he may have, in explaining his possession, lied most egregiously. The court instructed the jury with respect to recent possession of stolen property and explanation thereof. Appellant's explanations were shown to be false, absolutely so, if he made the explanation sworn to by several witnesses. He denies making such. But concede that he did give a false account of his possession, must the jury convict him for lying? Not so. The theory of the defense was, that defendant procured the horse from his father, when a colt, etc. He, his mother, and Blount swore to this fact. The court ignored the testimony of these witnesses by failing to present to the jury the issue as to whether he did obtain the horse from his father as stated by himself, his mother, and Blount. Counsel for appellant moved for a new trial expressly upon this omission in the charge. The failure to submit to the jury this theory of the case was such error as requires a reversal of the judgment, for this theory of the case embraces the only defense urged by appellant, and was supported by the evidence of three witnesses. In passing upon the truth of the testimony of these witnesses, the false explanation may be looked to by the jury. But accused parties should not be convicted of theft for lying. All of the evidence, the facts of the case, should not only be considered by the jury, but must not be discarded or ignored in the charge.
Judgment reversed and cause remanded.
Reversed and remanded.
Judges all present and concurring. *Page 512