The opinion on the motion for rehearing heretofore handed down by this court is hereby withdrawn and the following substituted therefor:
In the original submission argument herein and also in argument on motion for rehearing, our attention was not called to the propostition which was included in the briefs thereof, but which was overlooked by us, — that nowhere in the statement of facts is it shown that the cloak alleged to have been stolen by appellant was taken without the consent of the owner *Page 29 thereof. We have searched the statement of facts, and read and re-read the same, and fail to find where such was proven or shown in the trial of this case, although such owner was twice placed upon the witness stand. It has long been held by us that where the owner of alleged stolen property is present and testified before the jury, and fails to give direct and positive testimony as to want of consent to the taking of the property, such want of consent will not be inferred from other circumstances in evidence. See Caddell v. State, 49 Tex. Crim. 133, 90 S.W. Rep. 1014, 122 Am. St. Rep. 806, and cases there cited; also Hunt v. State, 231 S.W. Rep. 775; also Garrett v. State, 109 S.W.2d 487.
Under such a state of the record we have no other alternative than to grant the motion for a rehearing, and reverse the judgment and remand the cause.
The motion for rehearing is granted, the judgment of affirmance is set aside, and the judgment herein is reversed and the cause remanded.
ON STATE'S MOTION FOR REHEARING.