Willard v. State
Willard v. State
Opinion of the Court
This conviction is based wholly upon circumstantial evidence, and the court, having failed to instruct the jury with regard to that character of evidence, committed error for which the conviction must be set aside. (Willson’s Crim. Stats., sec. 2342.)
Holloway, the alleged owner of the cow, testified that the defendant promised to pay him fifteen dollars for the cow, etc. This did not prove a confession by defendant of the theft of the cow, and can not be regarded as more than a circumstance tending to establish defendant’s guilt of the theft. If defendant had confessed that he took the cow, such confession would have been direct evidence, and would have dispensed with a charge upon circumstantial evidence; but there is no proof in
Other questions presented in the record will not arise on another trial, and need not be determined.
Because of the error in the charge, the judgment is reversed and the cause is remanded.
Reversed and remanded.
Reference
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- Lon Willard v. State
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- 1. Practice—Charos of the Court—Circumstantial Evidence.— Omission oí the trial court to instruct the jury upon the law of eir. cumstantial evidence, in eases wherein the State relies solely upon that character of evidence, is fatal error. 2. Same—Confession.—A promise on the part of an accused to pay the owner for the alleged stolen property, although a circumstance that will tend to establish his guilt of the theft, is not a confession that he took the property, and hence is not a confession of theft.