¶1The appellant was tried and convicted of theft of goods from the store of M. N. Frank. There are two errors assigned by appellant, upon which the judgment is asked to be reversed: 1st, that the court below failed to charge upon circumstantial evidence; and 2d, that the evidence fails to support the verdict.
¶2The assignments, we think, are well made. This is a case of purely circumstantial evidence, and it was the duty of the court below, whether asked or not, to give in charge the law applicable to such a case. See Myers v. State, 6 Texas Ct. App. 1; Burrell v. State, 18 Texas, 713; Cave v. State, 41 Texas, 182; Hunt v. State, 7 Texas Ct. App. 212; Smith v. State, id. 382; Struckman v. State, id. 581.
¶3The second ground for which the judgment is sought to be reversed is that the evidence fails to support the verdict of the jury. After a very careful examination of the statement of facts, we must conclude that if there is a fact proved, not presumed, which reasonably tends or leads to the guilt of the appellant, we have not been able to discover it. The rule dictated by justice and reason requires that the evidentiary facts be proved and not presumed. The conclusion of guilt is presumed from the facts found, but these facts must be proved, in the strictest sense; that is, they must he shown to be true by the testimony of witnesses under whose observation they have actually and directly fallen, or the presumption of guilt must be made from leading facts which have been *298established by inference from the elementary facts of the case. Burrill on Cir. Ev. 136-8.
¶4Another rule which is approved by all thinking and just men requires that guilt should flow naturally and easily from the facts pi’oved, and be cozisistent with all of the facts. § 812, rule 4, 1 Stark. Ev. 561-573.
¶5Apply these plaizi and just principles to the facts in this case, and we think it will be found that there is no fact proved, either by direct or presumptive evidezice, tending or leading to the guilt of the appellant,— such presumptive evidence as is required by the rule. See this question illustrated by Burrill, p: 131. In order to cozivict the appellant, the facts must have been presumed in this case from other doubtful conclusions not authorized by the proved facts of the case. As the judgment will have to be reversed and the case tried agaizi, we will not comment on the evidence.
¶6For the errors above noticed, the judgznent must be reversed and the cause remanded.
¶7Reversed and remanded.