G. J. Makinson v. State , 1884 Tex. Crim. App. LEXIS 80 ( 1884 )

Willson, Judge.

1. There are no bills of exception in the record to any ruling or action of the trial court. We are therefore not required to consider whether or not there was error in overruling defendant’s application for a continuance, or the refusal of his motion for a change of venue. (Code Crim. Proc., Art. 686; Clark’s Crim. Law, p. 523, note 209.)

2. It is only in cases where circumstantial evidence alone is . relied upon by the State to obtain a conviction, that the trial court is required to instruct the jury as to the principles of law concerning that character of evidence. (Tooney v. The State, 8 Texas Ct. App., 452; Hardin v. The State, Id., 653.) In a case where the testimony establishing the commission of the offense by the defendant is both direct and circumstantial, such instructions are not demanded. In the case under consideration there was not only strong circumstantial evidence proving the defendant’s guilt, but there was direct, positive and convincing proof that he was the, identical party who committed the robbery charged in thelindictment. It was not error, therefore, for the court to omit and refuse to charge the jury in relation to circumstantial evidence. We think the charge of the court was in all respects full, fair, correct and applicable to the evidence.

3. We find no error in the refusal of defendant’s motion for a new trial. As to the alleged newly discovered evidence, the facts in regard thereto, as stated in the motion, show conclusively that it was not newly discovered, but must have been, or would have been by the use of reasonable diligence, within the knowledge of the defendant at and before the trial. This ground of the motion is entirely insufficient, and without merit.

We have examined the other grounds of the motion for new trial, and in our opinion none of them are supported by the record. That the verdict of the jury is fully sanctioned by the evidence there can be no question, and in all respects we believe the conviction to be legal and just.

The judgment is affirmed.

Affirmed.

Opinion delivered April 30, 1884.