Appellant was convicted of theft of property over the value of $50 and his punishment assessed at three years confinement in the penitentiary.
The evidence of the theft in this case is purely circumstantial. The court should have given the charge on circumstantial evidence.
The first count in the indictment charges the possession in H.W. Spear, who was holding said property for the Whitehouse Dry Goods Company, a corporation. This is the only count in the indictment submitted by the court to the jury. The court in its charge, among other things, tells the jury: "If from the evidence you are satisfied, beyond a reasonable doubt, that the defendants, Gus Taylor and Jim Bluford, in the County of Jefferson and State of Texas, on or about the 15th day of September, 1906, as alleged, fraudulently took from the *Page 617 possession of the White House Dry Goods Company the seventeen overcoats described, etc." There is no such allegation in the indictment. As stated, the indictment charged the possession in H.W. Spear, who was holding the property for the White House Dry Goods Company.
The evidence in the case shows that appellant was found in possession of several overcoats similar in make and character to those lost by the Whitehouse Dry Goods Company, but there is not sufficient identification, in this record, of the goods as belonging to the prosecutor to warrant a conviction. The effort to identify same is very unsatisfactory on any line.
Appellant further complains of the charge of the court as to accomplice, Nat Daniels, in that same does not fairly and properly charge the law and is on the weight of the testimony. We see no error in this charge of the court, and besides, this complaint is too general to be considered.
For the errors pointed out the judgment is reversed and the cause remanded.
Reversed and remanded.