Cases argued and decided in the Supreme Court of Texas, during the latter part of the Tyler term, 1874, and the first part of the Galveston term, 1875. Volume 42. Page: 446
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446 SMITH v. THE STATE. [Term of
Opinion of the Court.
general opinions of the witnesses, but by the detail of particular
facts and circumstances connected with them, and by
familiar acquaintance with, and positive recognition' of them
by minute description, all extending continuously back to the
time that the sow was a little pig. Her relationship even with
other hogs was fully attested and established, by witnesses in
favor of both sides. There is but a slight effort to discredit
the witnesses in favor of Smith's title. The strongest effort in
that direction is to show that Smith's wife was absent two or
three minutes from an interview, which she swore she was
present at, and heard all that was said; and the additional
fact, that Smith's very important witness was his attorney,
who defended him on the trial. The general character of none
of them was attempted to be impeached. Although minute
details are given, constituting reasons for a positive knowledge of
the identity of the sow during her whole life, by both sides, still
there is nothing very improbable or strange about it, unless it
be that both sides should be able to prove so intimate an acquaintance
with the sow and her history, as to make the most
positive proof of ownership for Houston on one side, and for
Smith on the other.
Had this been a civil suit, brought by Houston against
Smith to recover the sow and pigs, and the jury had found in
favor of either side, the verdict would have had ample evidence
to have sustained it, and it could hardly have been set aside,
because of the conflict or equal balance in the weight of the
evidence. Had the verdict in such case been against Smith,
it would have established that be had committed a trespass by
unlawfAully taking the property of Houston.
But to convict John Smith on this charge of theft, it should
have been shown, beyond a reasonable doubt, that Smith took
the hogs not only unlawfully, but alsofraudulently. Ile proved
most positively, by several witnesses, that they believed, and
believed that they knew that the sow and pigs were John
Smith's property. Was it shown, with reasonable certainty,
that he did not believe, as his witnesses swore they did, that the
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Texas. Supreme Court. Cases argued and decided in the Supreme Court of Texas, during the latter part of the Tyler term, 1874, and the first part of the Galveston term, 1875. Volume 42., book, 1881; St. Louis, Mo.. (texashistory.unt.edu/ark:/67531/metapth28531/m1/454/: accessed November 23, 2017), University of North Texas Libraries, The Portal to Texas History, texashistory.unt.edu; .