Appellant insists that the evidence *Page 349 is insufficient to support the verdict and judgment. In the light of his motion we have carefully reviewed the facts, and state some of them.
While a case on circumstantial evidence, it is not one dependent solely on the fact of possession of recently stolen property. Blanton's horse and buggy were taken from a hitch rack in the west part of the town of Santa Anna on the night of April 25th. Appellant, who lived eighteen miles south of Santa Anna, was in said town that night, and had no conveyance. Next day the Blanton horse and buggy were at appellant's place, and he was there. He testified on this trial that he left Santa Anna soon after "dusky dark," and denied being near the Blue Bonnet Cafe or in the western part of said town (where the horse was tied) at all during that night. Two witnesses, who knew appellant, testified that they saw him that night around ten o'clock in Santa Anna, one saying that he saw appellant in front of the Blue Bonnet Cafe going west; the other said he saw appellant between said cafe and the hitch rack (where the horse was tied) "walking kind of fast * * * toward that hitch rack." It was shown there were near by street lights, and this witness spoke to appellant. Said witness saw Mr. Blanton the next day and learned of the loss of the horse and buggy, and then remembered seeing appellant the night before.
The horse was tied to a post at the hitch rack by a man who said he had handled horses all of his life and had tied the horse tight and securely. If the rope had come loose from the neck of the horse, it would have been found at the post. If it had come loose from the post, it would have been on the neck of the horse, and as he traveled eighteen miles down the road to appellant's home, the rope would reasonably have dragged. Next day at appellant's home, when witnesses who followed the tracks of the horse and buggy came there, the rope in question was with the lines and the rest of the harness, on the buggy, — neither rope nor lines showing marks or signs of having been dragged. The horse and buggy were trailed from the hitch rack west a short distance, then south to the Whon road, then down that road to where the Trickham road turned off, then down the Trickham road to where an old road turned off going to appellant's place, then up said old road to appellant's premises, then through a gateway, — the gate to which was closed when witnesses got there, — to where the buggy stood between appellant's dugout and his lot. The horse was in appellant's pasture. When his possession was first challenged by Messrs. Blanton and May, who had followed the tracks, he told them, that when *Page 350 he got home from Santa Anna (claimed by him to have been about twelve o'clock at night) the horse was standing at his gate. He further stated that he put the horse in the lot, fed him, and untied the rope from his neck. Appellant testified in his own behalf that some boys in a car gave him a ride from Santa Anna to Mr. Kingsbury's, and that he walked the rest of the way home, some eight or nine miles, walking at a moderate gait; that he got home about twelve o'clock; that when he got home he heard horses "squalling," and went out to see about it, and found the horse in question inside his enclosure with nothing on him except a rope around his neck, being run around by a stallion belonging to appellant. He said there was no harness on the horse, and the horse was not hitched to the buggy. The statement of these circumstances seems to us to show that the proposition of appellant's guilt did not rest solely on possession of the recently stolen property, and further demonstrates that the jury had sufficient testimony before them to justify their conclusion of guilt. We have examined the three cases cited by appellant in his motion, in support of his contention that the evidence is not sufficient. Each of them is a case where the guilt of the accused depended solely on his possession.
Complaint is also made in the motion of something said by the writer of the original opinion in regard to the charge submitting appellant's defensive theory being indefinite. We considered the complaint of the charge. Said charge is quoted in our former opinion, and appears to fully present the only defensive theories advanced by appellant and supported by his testimony. Appellant's claim in testimony was that the horse and buggy got to his place on the night of April 25th, the night it was taken, without any agency on his part and without his knowledge. He said they were there when he first saw them or knew anything about them. His claim in regard to this matter was affirmatively presented to the jury in the paragraph of the charge, complaint of which is under discussion. We think the paragraph correctly presented appellant's defensive theories, and that it could not have so presented them had it not set them forth in substantially the manner and form same were presented. In same the jury were told that if they believed appellant found the horse and buggy in question on his premises, without any knowledge as to how it came there, or by whom it was placed there, he should be found not guilty. This is what he claimed. In said charge the jury were further told that if they had a reasonable doubt as to whether appellant fraudulently took possession of said horse with the intention *Page 351 to deprive the owner of its value, they should find him not guilty. This was also in accord with and presented appellant's defensive theory. We think the conclusion of the jury that this horse did not come loose from the hitching rack to which he was tied securely, without human agency, — correct, and that he did not go down a number of roads, each time taking the fork that led to appellant's residence, of his own accord, and that the jury were further justified in not accepting the rather incredible story told by him as explanatory of the presence of the horse and buggy at his place. This court has held in many cases that where there is an affirmative defensive theory advanced explanatory of the defendant's possession, the presentation of this theory to the jury in an appropriate way obviates the necessity of giving the stereotyped charge upon the reasonable explanation of the possession of recently acquired property by the accused. Mathews v. State,32 Tex. Crim. 355; Hinsley v. State, 60 Tex.Crim. Rep.; Lewis v. State, 64 Tex.Crim. Rep.; Bowen v. State,65 Tex. Crim. 46; Stephens v. State, 69 Tex. Crim. 437; Reasoner v. State, 117 Tex.Crim. Rep..
The motion for rehearing will be overruled.
Overruled.