12 S.W. 490


HANKINS
v.
STATE.


Court of Appeals of Texas.


June 29, 1889.1

Appeal from district court, Freestone county; R. HARDY, Judge.

David Hankins was convicted of the larceny of a bull, and appeals.

Asst. Atty. Gen. Davidson and Gardner & Gardner, for the State.

HURT, J.

This conviction was for the theft of a bull, alleged to be the property of 
H. B. Stubbs. We have very carefully examined the facts of this case, and find 
them insufficient to support the verdict. The state relies upon circumstances to
convict the appellant of the theft of the property. This is a legitimate and 
usual method of establishing the guilt of the accused; but the circumstances 
must possess such probative force as to establish guilt, with reasonable 
certainty. This must appear to this court; the rule being that the evidence must
convince the jury of the guilt of the accused beyond a reasonable doubt. In the 
judgment of this court, his guilt must be shown with a reasonable degree of 
certainty. This guilt does not appear from the evidence. It is assumed, from 
other circumstances, that the bull, with other cattle, passed along a certain 
road at a certain time; and that appellant was with these cattle, because the 
track of a certain mare was made along said road on the night these cattle were
driven by some one along the road. These facts, from which it was inferred that
appellant was with the cattle, may all be true, and still not sufficient. 
Concede that appellant rode the mare along the road on the night the cattle were
taken, and that he rode her in the same direction the cattle were driven. Still,
it is not at all certain that they passed along the road at the same time, and
not certain that he was driving, or assisting to drive, the cattle. In this case
the presumption of guilt is derived from remote facts, presumed from other, 
uncertain facts. This will not suffice. The criminative facts must be proved 
beyond a reasonable doubt; and they must, with reasonable certainty, conduce to 
establish the guilt of the accused. Now, the testimony does not show that the 
tracks of the mare were so made as to show that the rider was driving the 
cattle. It was shown to be true of some of the horses. On the other hand, the
evidence

Page 491

for the defense — conceding that appellant was along the road, riding the mare, 
on the night the cattle were driven — shows him to have been there, on said 
mare, innocently. We are not willing that this conviction should stand, resting,
as it does, upon such uncertain evidence. The judgment is reversed, and the 
cause remanded for another trial.

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Notes:

1. Publication delayed by failure to receive copy.

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