For the purposes of the questions we propose to discuss in this case the following substantial statement of the facts is made, viz.: Osborne lost his yearling in December. In February he found it in and got it from a herd of cattle claimed by and in possession of one Jesse Brothers. When reclaimed by him, the animal was found to have been re-marked and re-branded,— the marks and brand being apparently about six weeks old,— and showing that the animal had been branded and marked recently after it was lost or stolen. This appellant said that he had sold the yearling to Jesse Brothers, and that he had purchased it from one Webb. One Marlin, a witness for defendant, testified that on the 1st of January he became a witness to an instrument of writing— he did not know what the instrument was as he did not read and was not informed of its character — which instrument, when shown him upon the witness stand, he recognized by his signature, and it proved to be a bill of sale from one Webb to defendant for some cattle, two heifers and three two-year-olds, branded D 8, the same character of brand as found by Osborne upon his yearling when he got it from Brothers’s herd. Marlin had never seen Webb before, and never saw him afterwards, and it was not shown that any one else had ever seen or known him. There was no one in that section of country of that name, and he appears, so far as the record discloses, an entire stranger traveling through Falls county with some thirty or forty head of cattle in his possession, branded with the letter D and some other figure or letter not remembered by the witness. The bill of sale from Webb to defendant was not read in evidence, and is not set out in the transcript, but its contents, as stated by the witness Marlin after examining it, was “ that it was a complete bill of sale to Matt. Roberts to two heifers and three two-year-olds, branded D 8, dated January 1, 1884, and signed by H. W. Webb.” It will be seen that this bill of sale does not describe Osborne’s calf, because it was “ a yearling,” and the bill of sale conveyed two “ two-year-olds,” unless, indeed, Osborne’s calf was one of the two “ heifers ” mentioned in the bill of sale, which fact is not made to appear, nor is the sex of Osborne’s calf anywhere stated.
We will concede, however, that the bill of sale was intended to and did convey the Osborne yearling.
Upon this statement, how does the case stand? Defendant admitted in February that he had sold the yearling to Brothers, and the evidence showed a possession in him of the animal recently after it was stolen. Suppose the jury had disbelieved and entirely *87disregarded all evidence as to his purchase from. Webb, or suppose there had been no evidence of such purchase at all. Would possession of property recently after it was stolen, alone and of itself have been sufficient to warrant a conviction for theft ? This would depend upon the fact as to whether or not the party, when found in possession or when for the first time his possession was challenged, reasonably and satisfactorily accounted for his possession. If he did not, then the recent possession, unaccompanied by any other evidence, Avould be sufficient of itself to establish his guilt and Avarrant his conviction. The rule now settled is, that “ if a party in Avhose possession goods recently stolen are found fails satisfactorily to account for his possession, the presumption of guilt arising from recent loss and possession will warrant a conviction.” (Belote v. The State, 36 Miss., 97; 103 Ill., 82; 42 Miss., 642; 43 N. Y., 177; 65 N. C., 592; 60 Cal., 74.) Eo decision in our own State directly asserts a different or contrary doctrine (see 26 Texas, 200; 30 Texas, 444 ; 41 Texas, 483; 43 Texas, 431, 616; 44 Texas, 430 and 616; Clark’s Crim. Law, p. 259, and note; 15 Texas Ct. App., 115, 356, 363, 551), unless, indeed, it be found in the opinion of Judge Winkler in Hannah v. The State, 1 Texas Ct. App., pp. 582-3, and cited as authority in Truax v. The State, 12 Texas Ct. App., 230. That case will be overruled in this regard.
But in this case defendant did explain his possession, and his explanation was not only natural and probable, but satisfactorily accounted for his possession. He said he had purchased the property from Webb, and he proved up a bill of sale executed to him by Webb for the animal. This entirely rebutted the presumption of' guilt arising from the recent possession, and where this is the case the rule is that it devoHes upon the State to show that the explanation thus reasonably, naturally and satisfactorily accounting for his possession was false. (Garcia v. The State, 26 Texas, 210, and numerous other authorities.) Well, how is the State to do this? By introducing rebutting evidence to show that the statement is untrue or false? This it may be impossible to do. In the case before us it Avas doubtless impossible for the State to do so, because there Avas the bill of sale proven up as an indisputable fact going to establish the truth of the statement. What statement? That be had purchased the animal from Webb. If all bills of sale evidenced only bona fide transactions, then the defense Avas clearly made out. Human experience nor the law, unfortunately for such defenses, does not stamp bills of sale with unquestioned infallibility in this regard. Experience as well as the law says to the defendant, true, you say *88you bought from Hr. Webb and your bill of sale goes to prove it, but still there is the further question to be solved, and that is, “ Is the bill of sale conclusive of the fact that you did purchase from Hr. Webb?” “ Could not you and Hr. Webb have fixed up the bill of sale without a sale or purchase having ever really been made?” We are of opinion the evidence in this case tended most strongly to warrant the belief that such was the case, and especially the testimony of defendant’s witness Harlin in detailing the facts connected with his witnessing the bill of sale. This evidence, taken in connection with the other evidence adduced, strongly impresses us with the conclusion that the execution of the bill of sale was but a sham and device resorted to and procured by defendant to cover up his. fraudulent taking of the property. The rule is, “ if the evidence tends to show an acting together, conspiracy or complicity in the taking (or with a view to the covering up of a fraudulent taking), between the vendor in a bill of sale and a defendant charged with the theft, then, indeed, it would not only be right but highly proper for the court to submit the Iona fides of the bill of sale that the jury might ascertain and find whether or not it was a sham or device conceived to cover up and avoid the crime of theft. (Clark’s Crim. Law of Texas, p. 262, and note; Prator v. The State, 15 Texas Ct. App., 363.)
This issue was submitted in his charge to the jury by the learned judge presiding below, and his charge upon the different phases of the case was an admirable and full exposition of the law.
As to the question of defendant’s having fraudulently taken possession, that is, actual possession, of the animal stolen, the charge was most clear and explicit. A fraudulent taking may be proven by circumstantial, as well as by direct, evidence. In this case, if the jury concluded that the bill of sale was but a sham and device, then the other evidence fully warranted them in concluding also that defendant had taken actual manual possession of the yearling, because, in January, and before it was found in the herd of Brothers, to whom defendant sold it, the ear marks had been altered, and the animal branded D 8. Other facts would warrant the conclusion that this was done by defendant, and this could not have been done without, actual manual possession.
We have been unable to find any reversible error in this record.. The trial having been a fair and impartial one, and the evidence being sufficient to support the judgment, it is affirmed.
Affirmed.
[Opinion delivered October 25, 1884.]