This appeal is prosecuted from a conviction had in the District Court of Liberty County, on August 12, 1909, in which appellant was found guilty of theft of a hog, the property of one Sam Foscue, and his punishment assessed at confinement in the penitentiary for a period of two years.
1. The motion for a new trial complains, among other things, of the charge of the court on the law of circumstantial evidence. This instruction is in this language: "In this case the State relies for a conviction upon circumstantial evidence alone, and in order to warrant a conviction upon such evidence each fact necessary to establish the guilt of the accused must be proved by competent evidence, beyond a reasonable doubt; and the facts and circumstances proved should not only be consistent with the guilt of the accused, but inconsistent with any other reasonable hypothesis or conclusion than that of his guilt, and producing in your minds a reasonable and moral certainty that the accused committed the offense. It is not sufficient that the circumstances should render probable the guilt of the accused, but the evidence must be so strong and conclusive as to exclude every other reasonable hypothesis than that of the guilt of the defendant." It is urged that same is insufficient in that the court failed to instruct the jury that the facts and circumstances proved should be consistent with each other; and, further, the evidence must be such as when taken all together, produces in the minds of the jury a reasonable and moral certainty that the defendant and not some other person committed the offense charged. It was held in the case of Smith v. State, 35 Tex.Crim. Rep.[35 Tex. Crim. 618], that a charge on circumstantial evidence is not complete unless it contains in substance the proposition that the circumstances must exclude every reasonable hypothesis, except that of the defendant's guilt. In the case of Chitister v. State, 33 Tex. Crim. 635 [33 Tex. Crim. 635], the court say there is no prescribed form for an instruction *Page 92 on the subject of circumstantial evidence. If the ideas conveyed are correct, and so expressed as to be understood by the jury, the charge is sufficient. In that case the charge of the court did not require that the evidence should show that no other person committed the offense. In the earlier case of Hardin v. State, 8 Texas Crim. App., 653, Judge Clark, speaking for the court, uses this language: "The extent to which this or any other court has gone in prescribing a necessity for an instruction upon the law of circumstantial testimony is that, in cases dependent solely upon that species of evidence in order to connect the defendant with the offense committed, a jury should be instructed as to the nature and force of the conviction necessary to be impressed upon their minds before they are authorized to find against the prisoner. Hunt v. The State, 7 Texas Crim. App., 212. No particular words and phrases are essential in transmitting this idea to a jury, and the law is fully complied with if, from the charge given, it appears that the substance of the requirement has gone to them in such manner that they could not mistake the duty imposed in the particular case. In this particular case the requirement is fully met by an instruction that "the law prescribes no rule for the kind or amount of testimony, other than that it must be sufficient to fully satisfy the jury of the existence of every fact necessary to constitute the guilt of the accused beyond a reasonable doubt. This is the exact test furnished by the law." In that case it will be noticed that the court says that the requirements of the law are met by the instruction that the evidence must be sufficient to fully satisfy the jury of the existence of every fact necessary to constitute the guilt of the accused beyond a reasonable doubt. The charge of this court, it must be conceded, is not as well framed as ordinarily we might expect from the learned and distinguished judge who tried the case, but it does contain every essential element of the law of circumstantial evidence, and when considered in its entirety we do not think that it is subject to any substantial criticism.
2. The only remaining assignment that demands attention is that challenging the sufficiency of the evidence. We do not feel called upon to set out the testimony at length. Summarizing, the evidence was to this effect: Foscue owned a hog about a year old which ran close to where appellant lived. This hog bore his mark, which is distinctly given in the statement of facts. This hog was also well known to a witness by the name of Hilton, who testified to its identity on the trial, independent of his mark. On the day of the alleged theft Hilton found the hide, feet and head of this hog and fully identified it both by its flesh mark as well as by the fact that it bore the mark of appellant in its ears. When slain the hog had been skinned as one would skin a beef or other animal, and the feet cut off at the first joint. Hilton testified further that from indications the hog had been killed a very few hours; that he saw, near where the hog was killed, a barefoot track, which, he says, corresponded quite accurately *Page 93 with the track of appellant. He also testified that appellant habitually went barefooted, and when arrested was in his bare feet, and that he knew of no other person in the neighborhood who went barefooted. He also testified that soon after discovering the head of the hog he went to appellant's place and found in his crib some fresh pork cut up which had been skinned and from which there was absent the head, feet and hide, and that in quantity and weight it would have amounted to about as much in pounds as the Foscue hog would have weighed. No explanation of any kind was made by appellant of the possession of this meat. Appellant introduced his brother, Robert Moseley, who testified in substance that he had about the time named given appellant permission to kill one of his hogs about the size of the Foscue hog and running in that immediate neighborhood. On cross-examination the accuracy of some of his statements was distinctly challenged, but this is the effect of his evidence. This, briefly, is the case. We hardly feel justified, in the light of the finding of the jury, and in view of the action of the trial court, in reversing the case on account of the insufficiency of the evidence. Many of the cases cited by the appellant go pretty far in impeaching verdicts and judgments under somewhat similar circumstances. After all, however, each case must depend in a large measure upon its own facts. A careful review of the facts in this case has convinced us that we would not be authorized, as presented, in reversing on the ground that there is no evidence to sustain the verdict of the jury.
It is therefore ordered that the judgment of conviction be and the same is hereby in all things affirmed.
Affirmed.
Davidson, Presiding Judge, absent.
ON REHEARING. April 19, 1910.