Caldwell v. State , 117 Tex. Crim. 145 ( 1931 )

Appellant seems to think the charge on alibi in the present case is not distinguishable from those in Sessions v. State,81 Tex. Crim. 424, 197 S.W. 718; Claunch v. State,82 Tex. Crim. 114, 198 S.W. 307; Clevenger v. State,96 Tex. Crim. 23, 255 S.W. 622; Anderson v. State,99 Tex. Crim. 13, 267 S.W. 486; Supina v. State,115 Tex. Crim. 56, 27 S.W.2d 198.

In the latter case the charge condemned assumed that an offense had been committed. In Anderson's case accused was being tried for assault with intent to murder; the charge condemned required the jury to believe beyond a reasonable doubt the things accused was relying on to reduce the offense to aggravated assault. In the Clevenger case the charge required the jury to believe the defensive theory instead of advising that a reasonable doubt thereof was all that was required. As we understand the Claunch case the charge criticized was thought to require a finding beyond a reasonable doubt that accused was not in Johnson County, instead of requiring a finding beyond a reasonable doubt that he was in the county. Whether the charge was susceptible of the construction placed upon it may be debatable. In Sessions' case the condemned charge required the jury to believe beyond a reasonable doubt that accused was on his own premises, such being his defense to a charge of unlawfully carrying a pistol. We discover in the present charge none of the vices for which the instructions in the cases mentioned were condemned.

The motion for re-hearing is overruled.

Overruled.