As to the direct fact of the taking of the horse, there was no positive testimony. Recent possession is but a circumstance going to the establishment of that fact. Defendant did not admit the fact that he had stolen the horse. On the contrary, he stated he had purchased the horse on Denton creek in Denton county. Then, as to the main fact in issue, the theft of the horse, the evidence was only circumstantial. Such being the case, it was the duty of the court to charge the law applicable to that character of evidence. See Flores and Bernal v. The State, decided at the present term, ante, page 665.
It is true no special instruction was asked covering this point; and no bill of exceptions was reserved specifically challenging, on this ground, the charge as given. Still it was made one of the grounds for and directly called to the attention of the court in defendant’s motion for new trial, which was overruled. Under the authority of Bishop v. The State, 43 Texas, 390, the question was one which could properly be raised on and availed of for the first time on motion for a new trial.
For failure of the court to charge the law of circumstantial evidence, the judgment is reversed and the cause remanded.
Reversed and remanded.
Opinion delivered March 23, 1883.