Summary
In Preston v. State, 147 Tex.Crim. 79, 178 S.W.2d 522, 523 (App. 1944), the court held as a matter of law that the discovery of a stolen radio 15 months after the theft was not recent. The court in Sutherlin, 682 S.W.2d at 549-50, held as a matter of law that the evidence was insufficient to sustain the defendant's conviction where it rested on mere possession of the stolen bulldozer five months after the actual theft.
Summary of this case from Marbles v. StateOpinion
No. 22781.
Delivered March 8, 1944.
1. — Theft — Possession.
To raise the presumption of guilt from the circumstances alone of possession of property recently stolen, defendant must be shown to have been in possession thereof recently after the theft.
2. — Theft — Evidence — Possession.
Where accused was not seen with the stolen radio until fifteen months after it had been stolen, the evidence did not sustain conviction of theft, since the possession was not recently within the rule raising the presumption of guilt from possession of property recently after the theft.
Appeal from County Court of Walker County. Hon. E. C. Benge, Judge.
Appeal from conviction for theft of a radio; penalty, fine of $250.00 and ten days in jail. Reversed and remanded.
The opinion states the case.
Reginald Bracewell and A. T. McKinney, both of Huntsville, for appellant.
Ernest S. Goens, State's Attorney, of Austin, for the State.
Appellant was convicted of the theft of a radio and assessed a fine of $250.00 and ten days in jail.
The evidence in this case is insufficient to sustain a conviction. Reliance is had solely upon possession of the property and this possession was first proven to be fifteen months after the property had been stolen. In explanation he claims to have purchased the radio from a "tree army man." There is no evidence in the case to support the circumstance of possession. From Branch's Ann. P. C., Section 2463 we quote with approval the following:
"To raise a presumption of guilt from the circumstances alone of possession of property recently stolen, defendant must be shown to have been in possession thereof recently after the theft."
Fifteen months is not "recently." See Yates v. State, 37 Tex. 202 (Bed-clothing-five months); Bragg v. State, 17 T. C. A., 221 (Horse-five and one-half months); Bean v. State, 5 S.W. 525 (Mare-eleven months); Tolliver v. State, 8 S.W. 806 (Coat-one year); Flores v. State, 9 S.W. 772 (Mule-eleven months); Menchaca v. State, 125 S.W. 20 (Jewelry-three and one-half months).
It will not be necessary to discuss other questions raised by this appeal.
The judgment of the trial court is reversed and the cause is remanded.