It is urged that this court erred in its opinion affirming this case, in not passing on the question and reversing the case for the failure of the trial court to charge on circumstantial evidence. It appears that this contention was not stressed on the former presentation, and this point was overlooked in the former opinion. We are of opinion that the contention of appellant is sound. Exception was duly reversed to the failure of the trial court to charge on circumstantial evidence, and the point is properly brought before us in the record. Briefly, the evidence shows that Mr. McBride says he lost a Ford car in Waco in January, 1917, which car some seven months later he got back from Dr. Hull in Carthage, Texas.
One Tiller testifies that he and appellant tood a Ford car in Waco early in January, 1917, and carried it to Carthage, and sold it to Dr. Hull.
Two witnesses testified to seeing Tiller and appellant in a Ford car together at Carthage early in 1917. Dr. Hull was not used as a witness, and the car taken by appellant and Tiller was not in any way connected, except by circumstances, with the one recovered from Dr. Hull and Mr. McBride. Nor was the car recovered from Dr. Hull by McBirde identified by the accomplice Tiller as being the one taken by himself and appellant. Testimony of the character, either by Dr. Hull or by Tiller, would have taken the case out of the rule of circumstantial evidence, but same is wholly wanting. The identity of stolen property is a material fact, and while it may be proven by circumstances as in this case, this must be submitted in the charge. Pierson v. State, 78 Tex.Crim. Rep., 180 S.W. Rep., 1080; Felts v. State, 53 Tex.Crim. Rep.; Childers v. State, 37 Tex. Crim. 392.
The accomplice testified he and appellant took a Ford car in Waco, which they sold to Dr. Hull in Carthage. The owner said he lost a Ford car in Waco, which he got back from Dr. Hull in Carthage. The identity of the car taken and of the Dr. Hull to whom it was sold with that of the car recovered and Dr. Hull from whom it was recovered were both deductions from the circumstances. The court should have charged on this character of evidence.
The motion for rehearing is granted, the affirmance set aside, and the judgment reversed and the cause remanded for another trial.
Reversed and remanded. *Page 578