Garcia v. State , 108 Tex. Crim. 245 ( 1927 )

In his motion for rehearing, appellant insists that the evidence of the ownership of the hog in question rendered it incumbent upon the court to charge upon the law of circumstantial evidence.

We understand that it is the settled law of this state that the trial court is not required to instruct the jury on the law of circumstantial evidence except in cases in which the state relies solely upon that character of evidence to secure a conviction. See Hunnicutt v. State, 18 Tex.Crim. App. 498; Russell v. State, 38 Tex.Crim. Rep., and other cases collated in Branch's Ann. Tex. P. C., Sec. 1874. In a case of theft of personal property where the unlawful taking with the intent to appropriate it to the use of the accused and to deprive the owner of its value is proved by direct testimony, the prosecution is not one upon which the state relies solely upon circumstantial evidence. See Rodgers v. State, 36 Tex. Crim. 563, and other cases collated in Branch's Ann. Tex. P. C., p. 1342, Sec. 2480, Subd. 3.

In the present instance, that the appellant took possession of eleven head of hogs, that one of them escaped and was afterwards retaken by the appellant, that he sold first the ten head and later the one head was proved by direct testimony, namely, the confession of the appellant and his testimony on the trial and by corroborating circumstances. The sole defensive theory interposed by the appellant was that he took the property with no intent to deprive the owner thereof, but to protect his own premises from depredation by the hogs. That issue was submitted to the jury and determined against him. On this hearing it therefore definitely appears that the appellant took the property, that he did it unlawfully and without the consent of the owner, and with intent to appropriate it to his own use and deprive the owner of its value. This all coming from direct testimony, the case, in our opinion, was not one in which the state relied for a conviction upon circumstantial evidence alone. Conceding that the one hog for the theft of which this prosecution is based was identified as belonging to Braun (the owner named in the indictment) by circumstances, the application of the principles of circumstantial evidence to the whole case would still not have been appropriate for the reasons stated that the unlawful taking by the appellant was proved by direct evidence and only the ownership of the stolen property was proved by circumstances. It follows that only a part of the state's case depended upon circumstantial evidence. In almost every criminal case a part, at least, of the state's case is circumstantial. This court has uniformly declared the rule to be as stated above.

The several precedents to which we have been referred, namely: Veasly v. State, 85 S.W. 274; Patrick v. State,291 S.W. 901; Goode v. State, 120 S.W. 199; Felts v. State,108 S.W. 154, and Childers v. State, 37 Tex.Crim. Rep. have been considered and are not deemed in conflict with the rule of practice stated in the beginning of this opinion, nor of its application to the present facts.

We will state, however, that it would have been proper for the court to have instructed the jury in substance that unless the evidence showed beyond a reasonable doubt that Braun was the owner of the stolen animal, an acquittal should result. Such a charge, if requested, doubtless would have been given by the court. At all events, as the record is viewed here, a charge of the nature last mentioned would have fully protected the appellant's legal rights. See Davis v. State,152 S.W. 1094.

The motion for rehearing is overruled.

Overruled.