Wyers v. State

Willson, J.

The defendant was indicted jointly with D. H. *58Eay for the theft of a steer, and upon a separate trial was convicted. The evidence is wholly circumstantial.

Upon the trial, a witness for the State testified that the animal alleged to have been stolen, and another one, were pointed out to him by the defendant Eay in presence of defendant Wyers, and that Eay put down the brands of the two animals in a little memorandum book which the witness had, and said they were the correct brands. The witness stated that he did not have this book with him at the trial—that it was probably at his home, and that he had made no search for it. The county attorney then asked the witness what were the brands put down in the little book by Eay. The defendant objected to the witness answering this question because the book was the best evidence of its own contents, and no proof of its loss had been made, etc. The objection was overruled, and the witness answered, in substance, that the brands which Eay put down in the book were different from the brands on the animals, but he did not remember but one of the brands which was put down in the book. The defendant excepted to the ruling of the court in admitting this evidence, and presents the question in a bill of exceptions.

The evidence thus admitted was of a most material character in view of the facts of this case. It bore directly upon the intent of the defendants in setting up a claim to the alleged stolen property. It tended to show a fraudulent intent with reference to the property. It is an elementary rule governing the production of evidence that in all cases the best evidence which the nature of the case admits of must be produced. (1 Black. Com., book 3, side page 371; 1 Greenl. Ev., 82; Burrill’s Cir. Ev., 730.) The book in which the brands were put down by Eay was the best-evidence of what those brands were. It was documentary evidence, and unless its absence was accounted for (which was not done), it was error to permit the witness to testify as to its contents. (Porter v. The State, 1 Texas Ct. App., 396; Sager v. The State, 11 Texas Ct. App., 110; Wharton’s Cr. Ev., 567 et seq., 199, 206.)

The evidence in this case being wholly circumstantial, the court erred in not instructing the jury in regard to the character of such evidence. (Ray v. The State and authorities there cited, ante, 51.)

We are furthermore of the opinion that the court erred in refusing, to grant the defendant a new trial. The evidence, is, to *59our minds, not only unsatisfactory, but wholly insufficient to establish the guilt of the defendant with that degree of certainty demanded by the law in all criminal trials, and the meagreness of the evidence, when taken in connection with the fact that one of the jurors who tried the case knew and stated to some of his fellow-jurymen a material fact tending directly to establish the guilt of the defendant, and which fact was not in evidence, made it incumbent upon the court below to set aside the verdict of conviction and grant the defendant a new trial.

The judgment is reversed and the cause remanded for a new trial.

Reversed and remanded.

Opinion delivered October 21, 1882.