
    ROBERTS v. STATE.
    (No. 6826.)
    (Court of Criminal Appeals of Texas.
    April 5, 1922.)
    1. Criminal law <®=>406(2) — Accused held' to have been under arrest when statements were made by him.
    Where the officers entered a restaurant where accused was and there questioned him, eliciting incriminating statements, and thereafter did not permit accused to go at large before taking him to jail, accused was under arrest at the time the statements were - made, so that they were not admissible against him if he had not been warned, in view of Yernon’s Ann. Code Cr. Proe. 1916, art. 810, relating to confessions.
    2. Criminal law <§=>784(3) — If accused made confession, denial of charge on circumstantial evidence not error.
    If accused made a written confession after being duly warned, refusal to give a charge on circumstantial evidence was not error.
    3. Criminal law <§=>304(2)— State must introduce evidence as to value of oats stolen, although a matter of-common knowledge.
    In a prosecution for misdemeanor theft in stealing a wagon load of oats, the fact that it is common understanding that such oats have a monetary value, does not relieve the prosecution from its duty to prove such value by some sufficient evidence.
    4.Criminal law <§=>778(3) — Instruction as to presumption of innocence should be given.
    In view of Vernon’s Ann. Code, Or. Proc. 1916, art. 785, it was error for the court to fail to instruct the jury that defendant was presumed innocent until his guilt was established beyond a reasonable doubt.
    ■ Appeal from Briscoe County Court; L. B. Richards, Judge.
    Bob Roberts was convicted of misdemean- or theft, and he appeals.
    Reversed and remanded.
    Norrid & Daniel, of Silverton, for appellant.
    R. G. Storey, Asst. Atty. Gen., for the State.
   DATTIMORE, J.

Appellant was convicted in the county court of Briscoe county of the offense of misdemeanor theft, and his punishment fixed at 30 days in the county jail.

John Burson lost some oats. Said oats were trailed toward the'town of Lockney in an adjoining county, and it was discovered that appellant had sold a load of oats to a grain elevator in Lockney on that day. His wagon bed had oats in it. The officers found the appellant in a restaurant. The sheriff asked him a number of questions, which, with their answers, were objected to by the appellant upon the ground that he was then under arrest and unwarned. The objection was overruled, and the record contains the statements made by the appellant to said officers. Same are incriminating. It appears from the record that, from the time of finding appellant in, the restaurant, he was not permitted by the officers to go at large or to be out of their custody until he Vas lodged in jail. Under all the authorities, we are of opinion that the statements by appellant to said officers were inadmissible. There would seem no question of the fact that he was in legal custody and unwarned. Branch’s Ann. P. 0. pp. 35, 36; see, also, Vernon’s Ann. C. O. P. art. 810, for collated authorities.

Various exceptions were reserved to the charge of the court, among others, that the court failed to charge on circumstantial evidence. A special charge submitting this issue to the jury was refused. This was clearly a case of circumstantial evidence. There is a statement in the record that appellant made a written confession after being duly warned, but no such confession appears in the record. If it had been introduced in evidence, and if therein appellant had admitted taking said oats, then this would not have been a case of circumstantial evidence, and it would not have been necessary for the court to submit said issue. Upon the record before us, the case is beyond doubt one calling for a charge on such evidence, and the court erred in not submitting the issue.

Appellant excepted to the charge and asked an instruction of not guilty, because the state failed to prove the value of the alleged stolen oats. An examination of the record discloses a failure of the state to prove such value. While it may he well understood that a wagonload of oats has a monetary value, the prosecution is not relieved from its duty to prove the fact of such value by some sufficient evidence.

Said charge was further excepted to upon the ground that it failed to state to the jury that the accused was presumed to be innocent until his guilt was established beyond a reasonable doubt. An inspection of the court’s charge discloses that the court failed to give this well-established and well-understood principle of law. See article 785, Vernon’s O. O. P.

Upon another trial of this case, criminat-ing statements of the appellant, made at a time when he was unwarned, should not be permitted in evidence, and the matters of procedure above referred to can be, and we trust will be, remedied.

Por the errors mentioned, the judgment of the trial court will be reversed, and the cause remanded. 
      (g^Ror other oases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes
     