There is no testimony going to establish the fact that defendant was ever in possession of the horse in Harris county, where it was alleged the horse was stolen, and which was the county in which the prosecution was had. M. E. Davis, a witness for the State, testified that defendant brought a horse to his house in Harris county in Hay, 1883, and left him there two weeks; that in December he saw Moore, the alleged owner of the stolen horse, leading a horse by his house, but he explicitly states that he could not state that it was the same horse defendant brought to his house. Moore, the prosecutor, says he lost the horse in Harris county, in April, 1883, and that he got him from Dr. Waldrop in Waller county in December, 1883. Waldrop says he got the horse from defendant in October, 1883, which Moore afterwards got from him (the witness). This was six months after the horse was lost by Moore. The proof does not sustain the allegation of the venue of the offense as laid in the indictment.
Does the proof make out a case of property recently stolen? We think not. At least five and a half or six months elapsed from the date at which Moore lost the horse and the time he found him in possession of Dr. Waldrop, to whom defendant had sold him. “ The possession of stolen property five months after the theft is not sufficiently recent to raise the presumption that the party in possession of the goods is the thief.” (Yates v. The State, 37 Texas, 202.) u Possession of stolen property, to raise a presumption of guilt, must be recent.” (Beck v. The State, 44 Texas, 430; Roberts v. The State, decided at present term, ante, p. 82.) This conviction rests solely upon presumption from possession, and the possession was not recent. The evidence is insufficient to support the judgment.
Reversed and remanded.
[Opinion delivered November 26, 1884.]