Former appeals in each of these two cases were disposed of by us on the tenth of January, 1883, at the present term, and the judgments were reversed and prosecutions dismissed, because the indictments charged no offense against the law. Since then, the parties have both been again tried and *668convicted upon new indictments, and now present us with their second appeals.
Again the judgments must be reversed for defects in the charge of the court, in omitting and refusing to charge upon the law of circumstantial evidence. Defendants were not taken in flagrante delicto, that ,is, they were not seen to steal the horses. When arrested, their crime, if any had been committed by them, was already complete, though it may have been only a short time after and but a short distance from the place where the animals were stolen. Being found in possession of property so recently stolen was itself but a circumstance tending to show guilt. When arrested and asked what they were doing with the horses, they did not confess that they had stolen them; neither did they claim them as their property. They only said they were taking them to “varia,” which means, as stated by the witness, the precinct or suburbs of the city. There was indeed no direct or positive proof of their guilt; all the evidence adduced against them was circumstantial in character.
This being so, it devolved upon the court to charge the law relative to such testimony, and a failure to so charge in such cases has been so repeatedly held by this court to be reversible error that it would be but supererogation to cite authorities. The charge given did not embrace the law in this respect, and a correct enunciation of it was submitted in the special requested instructions which were asked for defendant, and which were refused by the court.
Again, in the sixth paragraph of the charge, the jury were instructed as follows, viz.: “If you find from the evidence that the defendant was in possession of said horse, and had no bill of sale or written transfer specifically describing the same, then his possession of said animal -wasprima facie illegal.” It is true that the rule here announced is so declared by statute, but to charge it abstractly is error. In the case of Garcia v. The State, appealed from Webb county and tried by the same learned judge who presided below at these trials, with regard to a similar charge, it was said: “We think the court should have instructed the jury that, though the failure to produce a written conveyance was prima facie evidence that defendant’s possession was illegal, yet it was not conclusive, and might be rebutted by competent evidence. The charge, as it was given, may have made the impression upon the minds of the jury that the inquiry should be confined to the question as to whether or *669not the defendant had a written conveyance. (Wills v. The State, 40 Texas, 69; 12 Texas Ct. App., 335.)
For errors in the charge of the court the judgments in each of these cases is reversed, and the causes again remanded for new trials.
Reversed and remanded.
Opinion delivered March 22, 1883.