
    HOPPER v. STATE.
    (No. 11700.)
    Court of Criminal Appeals of Texas.
    June 13, 1928.
    1. Larceny <⅜=>64( I) — Possession of stolen property by defendant was not direct evidence of taking, but was circumstance of guilt.
    Possession of stolen property by defendant was not direct evidence of taking of property, but was only circumstance of guilt.
    2. Criminal law <®==>8I4(I7) — In theft prosecution, instruction that case rested partly on circumstantial evidence held erroneous, where case rested wholly on circumstantial evidence.
    In prosecution for theft, where there was no direct evidence of taking, instruction advising jury that case rested partly on circumstantial evidence, and partly on direct evidence, was erroneous, where case rested wholly on circumstantial evidence.
    Commissioners’ Decision.
    Appeal from District Court, Stephens County ; C. O. Hamlin, Judge.
    Duvon Hopper was convicted of theft of property over the value of $50, and he appeals.
    Reversed and remanded.
    Y. L. Shurtleff, of Breckenridge, for appellant
    ' A. A. Dawson, State’s Atty., of Austin, for ■ the State.
   CHRISTIAN, J.

The offense is theft of property over the value of $50; the punishment confinement in the penitentiary for three years.

The ease rested wholly upon circumstantial evidence. The injured party lost some automobile casings, tubes, and rims. No witness testified that they saw appellant'or any other person take the property from the possession of the injured party. The stolen property was hidden by some person near the town of Breckenridge. An officer saw appellant and another go to the point where the property was concealed. One of the parties picked up one of the casings. The officer made his presence known, and appellant and his companion ran away. The stolen property was recovered at the point- where appellant and his companion had been seen by the officer.

The charge of the court advised the jury that the state relied “for conviction, in part, upon circumstantial evidence.” Immediately following such instruction, the law. of circumstantial evidence was defined. Appel-ldnt timely and properly excepted to that portion of the charge wherein the jury were instructed that the state relied in part upon circumstantial evidence. The exception was well .taken. The case rested wholly upon circumstantial evidence. There was no direct evidence of the taking of the property. The possession of such property by appellant was but a circumstance of guilt. In his Annotated Penal Code of Texas, § 2478, Mr. Branch states the rule as follows:

“In cases of theft proof of possession of property recently stolen which is unexplained, or proof of such possession explained when the explanation does not admit the taking of the property from the person in whom possession is laid, is but a circumstance, and if there is no direct evidence of such taking a charge on circumstantial evidence is required.”

See, also, Jones v. State, 54 Tex. Cr. R. 37, 111 S. W. 653.

The main fact to be proved was the taking of the property by appellant from the possession of the person in whom possession was laid. There was no direct evidence of such taking. Again we quote from Branch’s Annotated Penal Code of Texas, § 2478, as follows :

“If the main fact is proved as a matter of inference from other facts in evidence, the case rests wholly, in a legal sense, upon circumstantial evidence. In cases of theft the main fact to be proved is the taking from the possession of the person in whom possession is laid, and if there is no direct evidence of such taking — . the main fact — a charge on circumstantial evidence is required.”

See, also, Germany v. State (Tex. Cr. App.) 3 S.W.(2d) 799; Goode v. State, 56 Tex. Cr. R. 418, 120 S. W. 199.

The facts showing that the case rested wholly upon circumstantial evidence, the court was in error in advising the jury that the case rested partly upon circumstantial evidence and partly upon direct evidence, Germany v. State, supra; Pabst et ux. v. State, 96 Tex. Cr. R. 617, 259 S. W. 577.

For the error discussed, the judgment 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. 
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