
    RUSSELL v. STATE.
    (No. 5621.)
    (Court of Criminal Appeals of Texas.
    Feb. 11, 1920.)
    1. Burglary <&wkey;42(2) — Evidence op finding STOLEN GOODS IN HOUSE OCCUPIED BY DE-PENDANT AND OTHERS INSUFFICIENT TO CONVICT.
    Evidence that a burglary had been committed and property stolen February 25, and that some of the stolen goods was found April 4 in a house occupied by defendant and his wife and by a man with opportunity equal to that of defendant, and not showing defendant’s personal possession or conscious assertion of prop erty, is insufficient to sustain a conviction.
    2. Criminal law <&wkey;317 — Presumption prom state’s absence op effort to show de-pendant’s POSSESSION OF STOLEN GOODS CONSISTENT WITH PRESUMPTION OP INNOCENCE.
    The presumption, arising from state’s absence of effort to show that stolen goods found in house occupied by defendant and others were found in the part occupied by defendant or were in his exclusive possession, is in consonance with the presumption of innocence, and not against it.
    
      3. Burglar's <S=»37 — Pistols and flashlights on defendant’s premises evidence OF GUILT.
    The discovery of pistols and flashlights on premises occupied by defendant and others, and upon which the stolen goods were found, is evidence tending to connect the defendant with the burglary.'
    Appeal from Criminal District Court, Travis County; James R. Hamilton, Judge.
    John Russell was convicted of burglary of a' private residence at nighttime, and he appeals.
    Reversed and remanded.
    Monroe & Patterson, of Austin, for appellant.
    Alvin M. Owsley, Asst. Atty. Gen., for the State.
   MORROW, J.

The appellant was convicted of burglary of a private residence at nighttime. The residence was a room occupied by Conger, and on the 25th of February the burglary was proved to have taken place.

The state relied for a conviction solely upon evidence of possession by the appellant of the fruits of the crime. Upon that subject, this was the evidence: On the 5th of April, following the burglary, Conger identified a pocketknife and a watch chain which were stolen from his room, and which he found in possession of a police detective at the police station in Austin. This detective’s testimony on the subject was as follows:

“On the morning of April 4 I made a search, in company with City Policeman Stubbs, of the residence of the defendant, John Russell, and wife, Rosa Russell, located at 108 East Twenty-fifth street, Austin. As a result of the search, I arrested the defendant. We found, among other things, in Russell’s residence a pocketknife and watch chain which were identified the next day by Mr. Conger as being his property, taken from his residence on February 25. There were also found four pistols in the house, and several flashlights. There was a negro man by the name of Yell occupying the house, who was arrested and released.”

When there is proof that a burglary has . been committed, and property stolen from the premises, the possession of the property thus recently stolen has been considered as a circumstance of such cogency that it will sustain the verdict of the jury connecting the possessor of the property with the offense. Payne v. State, 21 Tex. App. 184, 17 S. W. 463, and other cases listed in Branch’s Annotated Texas Penal Code, § 2346. To gup-port such finding, however, the possession must be personal, recent, and unexplained, and must involve a distinct and conscious assertion of property by the accused.' Casas v. State, 12 Tex. App. 59, and other cases in Branch’s Annotated Penal Code, § 2463. Mr. Burrill, in his work on Circumstantial Evidence, says:

“But if it were only found lying in a house or room in which he lived jointly with others equally capable of having committed the theft, it is clear that no definite presumption of his guilt could be made.”

In the instant case, in which we have quoted all of the criminating evidence, we are made to know that property taken from the burglarized premises on February 25 was found on April 4 in a residence occupied by the appellant, his wife, and Fred Tell. The detective and a policeman searched the house, and arrested the appellant. The size of the house, the number of rooms that it contained, the location of the property, whether found in a room occupied by appellant, or Yell, or where, are not disclosed, though manifestly the evidence was at hand, and available to the state. Was he in possession of the property? Was his possession exclusive? Did he exercise a conscious assertion of property over it? We do not know. In the absence of an effort on the part of the state to develop the facts which were manifestly .in their possession, and which would tend to answer these questions essential to the state’s case, the inference or presumption arising from such absence is in consonance with the presumption of innocence with which the law surrounds the accused, and not against it.

There are no circumstances other than the evidence of possession which we have quoted, and the fact that there were pistols and flashlights found on the premises, which tend to connect the appellant with the burglary; there are no declarations, no disclaimer of guilt by Yell, who was shown by the state’s evidence to have been an occupant of the house with opportunity equal to that of the appellant; no proof that appellant was at his home on the occasion of the burglary; no tracks; nothing but the bare facts that some time after the burglary the stolen property was found in the house occupied by himself and others. He used the testimony of his mother, which, if true, definitely established an alibi, locating the appellant in San Antonio, some 80 miles distant from the scene, of the crime at the time it was committed. The evidence does not exclude every reasonable hypothesis save that of the guilt of the accused. In the language of Judge Willson in a similar case:

“The evidence falls far short of establishing the guilt of the defendant with that degree of moral certainty which excludes every other reasonable hypothesis. To warrant an inference of guilt of theft from the circumstances of possession of recently stolen property, such possession must be personal and exclusive, must be unexplained, and must involve a distinct and conscious assertion of property by the defendant. * * * No such possession is sliown by the evidence in this case.” Field v. State, 24 Tex. App. 428, 6 S. W. 200.

The judgment of the trial court is reversed, and the cause remanded. 
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