¶1While I believe the court was in error with reference to the charge on principals, especially in view of the statements of Nelse Witten used by the State to the effect that he and the defendant took the cattle, still I do not deem it necessary to write at length on this matter. It was a serious issue whether the remarks of Nelse Witten, when he made that statement, were heard by appellant. With that statement out the doctrine of principals would not be applicable to the case. It would, therefore, assume a proposition detrimental to defendant, which made him guilty or might make him guilty as a principal, when if Nelse Witten was not a principal or connected with the original taking, appellant's guilt would be made to depend upon a fact not shown. It was a controverted issue, and if the court saw proper to charge on principals from that viewpoint, he ought to have given the converse of the proposition; but it not being a serious matter in this case because of the fact appellant himself admitted taking the property, it might not be injurious, especially as he received the lowest punishment. I simply mention this in passing. If appellant had received more than the minimum punishment, or if it had been a controverted issue as to his being guilty, that would have become a very serious question.
¶2The question of venue became one of serious import, and was really the contested issue on the trial. It may be stated as a conceded or uncontroverted fact that the pasture of Gilliland, the alleged owner, was right on the line between the two counties, Wilson and Atascosa, and that the alleged stolen property sometimes was in the pasture and sometimes out; more often out than in, and that the pasture fence was down or in such condition that the cattle paid no regard to it and went out and in at their pleasure. It is also practically an uncontroverted fact that these cattle would range down the road into Atascosa County, and often lie down for the night in Atascosa County. From this the State insisted that the venue was in Wilson County. The court submitted the issue, that if the cattle were in Wilson or within 400 yards of the line, although in Atascosa County, venue would be properly laid in Wilson County. That is a correct proposition of law, but the State's case on this line is entirely circumstantial and drawn from the facts above stated. That they were not in Wilson County when taken may be stated as a conceded fact, or at least it ought not to be controverted. The positive evidence shows that the animals were taken a mile or a mile and a half inside of Atascosa County and beyond the limits of Wilson County. This question was brought properly to the attention *151 of the court, and with a request that the law be applied specifically to that phase of the case, and if the jury should believe this positive evidence that the cattle were taken as indicated above, appellant should be acquitted, for the reason that Wilson County would not have venue. I think this charge should have been given because that would have been an affirmative presentation of the positive evidence on that theory. The general charge was not sufficient under the circumstances. I am further of opinion that inasmuch as the State could only draw the inference from circumstances that the cattle may have been or may not have been within 400 yards of the Wilson County line at the time taken, this is not sufficient under the testimony showing positively that they were a mile or more inside of Atascosa County. Presumption based on a presumption can not form basis for conviction and is not legal. While the reasonable doubt may not apply to question of venue, still it is a substantial matter to be shown on the trial, and the evidence ought to be sufficiently strong to show that the cattle were within jurisdictional limits. See Branch's Crim. Law, secs. 838-839. This matter was presented to the court in special requested instructions, which were refused and exception taken. I believe under the showing made this judgment ought not to be affirmed.