
    HARTFIELD et al. v. STATE.
    (No. 9806.)
    (Court of Criminal Appeals of Texas.
    March 10, 1926.)
    1. Larceny <§=>55 — Evidence held insufficient to sustain conviction for theft of watch from house while owners were absent.
    In prosecution for theft of watch from home while owners were absent, visiting another, evidence that accused were at place owners visited on evening of theit, and that their tracks were found near owner’s house next morning, held insufficient to sustain conviction.
    2. Criminal law <§=>566.
    Proof that party charged was person committing crime or participating in commission must be of greater degree of certainty than mere probability or suspicion.
    Commissioner s’ Decision.
    Appeal from Guadalupe County Court; J. B. Williams, Judge.
    Johnnie Hartfield and Leon Richardson were convicted of theft of a watch under the value of $50, and they appeal.
    Reversed and remanded.
    P. E. Campbell, of Seguin, for appellants.
    Sam D. Stinson, State’s Atty., of Austin, and Nat Gentry, Jr., Asst. State’s Atty., of Tyler, for the State.
   BERRY, J.

The hppellants were convicted of theft of a watch under the value of $50, and their punishment assessed at a fine of $100 and six months in jail.

The record discloses that one Alford Mattke and wife left home on the afternoon of May 29, 1925, a short time before sundown, and went to the home of Mr. Doege, Mattke’s father-in-law, who lived about a mile away, and that, when they returned home that night, they found that some one had entered the house, the doors of which had been left open, and had taken a watch and some meat and. apples. The only connection this record shows that the appellants had with this theft was that they were at Doege’s house between sundown and dark, and there is some testimony to the effect that their tracks were found near Mattke’s house the next morning. The record fails to show that any of the stolen property was found in the possession of these appellants, or either of them, and, except as above stated, there is not a suggestion in this record that in anywise easts a suspicion on these appellants. The testimony is wholly insufficient to support the verdict. Cox v. State (Tex. Cr. App.) 59 S. W. 903; Williams v. State, 271 S. W. 617, 99 Tex. Cr. R. 586; Tollett v. State, 44 Tex. 95.

These cases and many others support the rule that, in order to sustain a conviction, it should .not only appear that, an offense had been committed as charged, but it is also essential that there should be proof showing that the party charged was the very person who committed or was a guilty participant in its commission, and the proof must be of a greater degree of certainty than a mere probability or suspicion. It is the plain duty of the court to require that proof be made by legal .and competent evidence pertinently identifying the defendant with the transaction constituting the offense charged against him.

If it be conceded that the tracks of the appellants were found near the home, or at the home, of the alleged injured party in this case, it would by no means follow that this circumstance alone was sufficient to show beyond a reasonable doubt that they were the parties who stole the property taken from him on the night in question. In this state a citizen cannot be legally convicted on any such flimsy testimony. It is true that the appellants are negroes and the alleged injured party is a white man, but this fact does not authorize the state to dispense with proof of guilt.

Because the evidence is wholly insufficient to support the verdict, the judgment of the trial court is reversed and the cause remanded.

PER CURIAM.

The foregoing opinion of the Commission of Appeals has been examined by the judges of the Court of Criminal Appeals and.approved by the court.  