No one saw the defendant take the alleged stolen property. As made by the evidence, the case was one of possession, explained by defendant, of property recently stolen, the sufficiency of such explanation being a question for the jury. “The factum probandum of theft, as that offense is defined by our statute, is the taking of the property. If the talcing, being the main fact in issue, is not directly attested by an eye witness, but is proved as a matter of inference from other facts in evidence, the case rests wholly upon circumstantial evidence, and the failure of the trial court to give in charge to the jury the law of circumstantial evidence is material error.” (Crowell v. The State, 24 Texas Ct. App., 404.)
“Possession of recently stolen property is not positive evidence of theft. At most, it is but a circumstance tending to establish theft. A case, therefore, depending alone upon the possession of recently stolen property is a case resting alone upon circumstantial evidence, and in such case the omission of the trial court to charge the jury upon the law of circumstantial evidence is material error.” (Boyd v. The State, 24 Texas Ct. App., 570.) “And the charge of the court in a theft case, if the inculpatory facts consist alone of recent possession of stolen property, explained by the accused, when his possession was first challenged, is insufficient unless it explains to the jury the law applicable to such recent possession and explanation.” (Fernandez v. The State, 25 Texas Ct. App., 538; Florez v. The State, 26 Texas Ct. App., 477.)
In this case the charge of the court fails to instruct the jury either upon circumstantial evidence or the law with regard to property recently stolen, with explanation of his possession by the defendant.
The remark of the prosecuting attorney in the presence of the jury that he proposed to “prove by the sheriff that defendant was arrested two or three years ago for a burglary committed in Dallas county at the same time and place as he Is now charged with theft,” was clearly wrong and calculated to prejudice defendant with the jury. Such evidence was not admis*466sible, and afforded no reasonable presumption or inference pertinent to the issue in the case for which defendant was on trial, and the court failed so to instruct the jury. (Cesure v. The State, 1 Texas Ct. App., 19; Chumley v. The State, 20 Texas Ct. App., 547, and authorities cited.)
Opinion delivered April 10, 1889.The judgment is reversed and the cause remanded.
jReversed and remanded.