Hays v. State , 129 Tex. Crim. 156 ( 1935 )

Appellant in his motion for rehearing insists that we were in error in holding that the court did not err in submitting the State's special requested charge No. 2 because the same is contradictory in itself and casts a greater burden on him in proving his defense than the law requires. In our original opinion we did not approve this charge but no objection was made to the same within the time and in the manner prescribed by law. If proper objection had been urged to the same specifically pointing out the error, no doubt the trial court would have responded to the objection and amended the charge. Art. 658, C. C. P., provides that all objections to the court's charge shall be in writing specifically pointing out the error complained of and shall be made before the court reads his charge to the jury. This court has frequently held that the article above referred to must be strictly complied wth. See Kelly v. State, 112 Tex.Crim. Rep., 17 S.W.2d 460; Lawson v. State, 24 S.W.2d 412; Dean v. State,42 S.W.2d 1025; Walker v. State, 45 S.W.2d 987.

Appellant's next contention is that the statement made by Vance Womack, a co-defendant, in appellant's presence, to the effect that he, Womack, purchased the oats and hired appellant to haul them, was an exculpatory statement. We are unable to agree with appellant in this contention. The statement was but an explanation of his possession of the alleged recently stolen property. The State did not rely on the alleged statement for a conviction because it did not embrace a confession or an admission of guilt. This leads us to the conclusion that the court's charge on explanation of possession of recently stolen property adequately protected appellant's legal rights.

Appellant also contends that the evidence showed he was but a hired hand hauling the oats for Womack and that the court did not submit said issue to the jury. An examination of the court's charge discloses that he instructed the jury that "if the defendant was merely a hired hand of one Vance Womack and did not then and there participate in the alleged burglary of said house, or that defendant's connection was wholly subsequent to the alleged burglary, or if they had a reasonable doubt thereof, to acquit him." Besides, the court instructed the jury that if they believed that appellant's connection with the matters testified to was subsequent to the breaking and entering, if any, of said house, then they could not convict appellant. Appellant did not testify. His alleged defense comes from the explanation given by his co-defendant at the time when appellant was apprehended with the stolen oats in his car and trailer.

Believing the case was correctly disposed of in the original opinion, the motion for rehearing is overruled.

Overruled.