This case was affirmed at the last Austin term, 1899, for reasons that appeared to us at that time sufficient. Motion for rehearing was filed, and the same has been transferred to this sitting of the court, and now comes before us on said motion.
Appellant strenuously insists that the court erred in the former opinion in holding that the motion for continuance filed in the lower court did not show diligence, and the testimony, if secured, was not probably true. In the view that we now take of this case, we do not deem it necessary to review the ruling on the motion for continuance, but will say, in passing, that it appears there are more evidences of diligence in the record than indicated in the original opinion. The only phase of the question we deem it necessary to review now is the contention of appellant that the court erred in holding that it was not necessary to charge on circumstantial evidence. We frankly admit that appellant is correct in this contention. It is not necessary to review all the facts in this case, but suffice it to say that the owner of the animal stolen testified that he lost the yearling; that it was missed from his place, and he gave no one consent to take it, and about eight or ten days afterwards he got it back from the premises of Jim Palmer. John Doyle testified for the State that he knew the defendant, and knew F. Burleson, the owner of the yearling alleged to have been stolen; that some time in the early part of 1897 defendant drove a black and white pied yearling down to where Jim Palmer was living, and sold it to Jim Palmer; that he was present, *Page 209 and heard the trade between them. There is no positive evidence as to the taking of the animal. The animal was found in possession of appellant eight or ten days after the same was missed from the possession of the owner. Appellant claimed to have won the animal in a game of cards with one McBride. Where there is neither a confession by appellant, nor positive proof of the gist of the offense of theft (that is, the fraudulent taking), the case is one resting on circumstantial evidence; and it is fundamental error for the court not to charge upon the same. Crowell v. State, 24 Texas Crim. App., 404. As indicated in the original opinion of this court, the charge as given was erroneous, but it is not necessary here to criticise the charge given. A correct charge, in conformity with precedents, can be found in Henderson v. State, 14 Tex. 514, and Smith v. State, 35 Tex.Crim. Rep.. We also think the court erred in failing to give the special charge on circumstantial evidence requested by appellant. This court has uniformly refused to affirm a case of circumstantial evidence where the trial court failed to charge on circumstantial evidence and the evidence in the case is of that character. Montgomery v. State, 20 S.W. Rep., 926; Robertson v. State, 26 S.W. Rep., 728. The motion for rehearing is granted, and, because the court failed to give a proper charge on circumstantial evidence, the judgment is reversed and the cause remanded.
Motion granted. Reversed and remanded.