This appeal is prosecuted from a judgment convicting the defendant of the theft of a horse, the property of one B. H. Smith. There is but one question presented by the record here that need be considered, as it is the only one of any importance in the case.
The case is one entirely dependent upon circumstantial evidence, and the State relied upon recent possession by defendant of the horse alleged to have been stolen. The only evidence found in the record which in any manner tends to show such possession is contained in the testimony of the State’s witness Frazier, which is in substance as follows:
He, the witness, went to the Q. H. ranche in the Indian Territory, and there left a description of Bob Scott and J. A. Alexander, and also of the Smith horse. He then went on about fifteen miles, and returned on the next day to the said ranche, where he found the defendant and J. A. Alexander under arrest, and also found the *331horse of B. H. Smith hitched about fifteen steps off, the prisoners being in a house and under guard.
After this evidence was adduced, the defendant’s counsel moved to exclude it from the consideration of the jury on the ground that it was incompetent in this, that it was an attempt on the part of the State to prove the possession of the horse by defendant by circumstantial evidence, when the evidence itself disclosed the fact that better and direct evidence existed. The motion to exclude was denied, and to this ruling the defendant excepted and saved his bill.
This transaction was in the Indian Nation, beyond the process of the courts of this State in a criminal case, unless in a case of a deposition on behalf of a defendant. As a general proposition, the position of appellant is well taken; but the rule is that “positive evidence is always required when from the nature of the case it appears it might possibly have been had.” (1 Bl. Com., Book 3, side page 371.)
The witnesses by whom this positive proof could have been made being beyond the jurisdiction of the court, the State was relieved of the necessity of producing such evidence, and hence the fact that defendant was in possession of the horse could be shown by presumptive evidence. The court did not err in refusing to exclude it from the consideration of the jury.
However, after having thoroughly examined the evidence in this case, we have not discovered any fact creating a serious suspicion against defendant, save those contained in the testimony of the witness Frazier, and which occurred at the Q. U. ranche, as above stated; and while, under the facts of the case bearing upon this point, we hold that the State could, by circumstantial evidence, prove that defendant was in possession of the stolen horse, still the circumstances by which this fact is attempted to be shown must be so cogent and conclusive as indeed to establish the fact, that is, that defendant was in possession of the stolen horse. It will be found from an inspection of the statement of facts that the other criminative facts are so slight, unsatisfactory and uncertain in their tendency; that, for the evidence to be sufficient to support this conviction, proof of recent possession by the defendant must be made; and, while this proof may be made by circumstances, yet the circumstances— facts from which this fact of possession is sought be inferred — must warrant this inference, and no other.
Proof of the possession by defendant being essential to this conviction, owing to the weakness of the other criminative facts, the party upon whom the burden of proof rests is bound to prove every single circumstance which is essential to the conclusion, in *332the same manner and to the same extent, as if the whole issue rested upen the proof of each individual and essential circumstance. (Lehman v. The State, 18 Texas Ct. App., 174.) If the State has shown that defendant was in possession of the horse, this fact, taken in connection with the other circumstances, though slight, would be sufficient to sustain this conviction. But has the State shown this possession by defendant?
Frazier described Alexander and defendant, and also the horse. "He left and went about fifteen miles, and when he returned next day to the ranche he found Alexander and defendant in a house, prisoners, the horse being hitched off some fifteen steps. How, who hitched the horse at this place? Did Alexander or defendant? If so, which? Or, was Alexander found in possession when arrested? Or, was defendant found with the horse when he was arrested?
There were some twenty-five people at the house when Frazier returned. Hay not some of these persons have hitched the horse near the house? Who can tell with any degree of certainty?
This is an important matter, and under the rule there should be no uncertainty about it. As before stated, the State, from the other though slight criminative circumstances, by no means sufficient within themselves, and recent possession by defendant, proposes to infer or presume that main fact,— to wit, that defendant took the horse; and thus establish his guilt. The main fact must be established beyond reasonable doubt, and hence the facts from which the main fact is to be presumed, if essential, must be proved beyond a reasonable doubt; and we have seen, under the circumstances of this case, that proof of possession in defendant is an essential fact, and hence the necessity of proof of possession by defendant is absolute ; because no conclusion can be more certain than the facts from which it is made or deduced. We are therefore of the opinion that the evidence is not sufficient to support this conviction.
While we do not determine that there was such error in refusing the first special instruction asked by defendant as would require a reversal of the judgment, still it was not an inappropriate charge, but on the other hand quite applicable to the peculiar character of this case, and, if not in effect embraced in the main charge, should have been given as requested.
The other questions presented are not likely to arise on another trial. Because the verdict is not supported by the evidence, the judgment is reversed and the cause remanded.
Reversed and remanded.
[Opinion delivered November 14, 1885.]