Smotherman v. State ( 1904 )

Appellant was convicted of burglary, his punishment being fixed at confinement in the penitentiary for a term of four years. The facts adduced on this trial are substantially the same as collated in the former appeal of this case. See 7 Texas Ct. Rep., 1023.

There is no bill of exceptions verifying the first ground of the motion complaining that the court erred in permitting witness, Allen Williams, to testify for the State; hence it cannot be reviewed.

The second ground of the motion complains that the court erred in failing to instruct the jury as follows: "Testimony has been introduced by the State to the effect that certain sugar was found in the defendant's possession at his house by the officer who made the arrest; and also to the effect that defendant then and there made a statement to the officer concerning said sugar, and also to the effect that defendant bought said sugar from Mrs. Thomas, in the town of Joaquin, and also testimony tending to show that defendant did not get said sugar from Mrs. Thomas. Now, in connection with said testimony, you are instructed not to consider the same against the defendant under any circumstances, unless you further find from the other testimony in the case beyond a reasonable doubt that the sugar which defendant claims he got from Mrs. Thomas, and which was found in his house at the time of his arrest was the same sugar which had been recently taken from the house of Wallace Oulds, as charged in the bill of indictment. If you do find beyond a reasonable doubt that such sugar so found in defendant's possession as aforesaid was a part of the sugar taken from the house of Wallace Oulds, as charged in the indictment, if any, was taken, then such testimony above mentioned may be considered by you in connection with all the other testimony, in determining the guilt or innocence of defendant, under the rules of law heretofore given you." The court did not err in refusing this charge. It is altogether on the weight of the evidence. Nor do we think that the charge on recent possession of stolen property is necessary to be given, as presented by the facts of this case at all, since defendant did not make an explanation of his possession, when his possession was first challenged, such as required a charge upon recent possession. If he had, then a charge on recent possession would have been pertinent. Jackson v. State, 28 Texas Crim. App., 143. But since the case of Allen v. State, 4 Texas Crim. App.. 581, this court has held that an explanation by defendant of his possession of stolen property made on other occasions than when first found in possession of it or accused, is not admissible in his favor. See also Taylor v. State, 15 Texas Crim. App., 356. The record before us shows that appellant was arrested at night for the theft of the sugar. The next day he gave bond, and after giving bond was the first time he made any explanation. Any declaration or explanation then made would be self-serving, and would not require a charge on recent possession of stolen property.

The fourth ground of the motion complains that the court failed to charge on the issue of alibi. The court did so charge, and the charge is all that appellant could ask.

Appellant in his brief and argument insists that the evidence is not sufficient to support the conviction. While it is circumstantial, yet it is of that conclusive character, taken as a whole, that irresistibly leads to the conclusion that appellant and no one else took the sugar out of prosecuting witness' house. A few moments before the sugar was taken, prosecuting witness placed the same in the safe, fastened the door of her house, went to a neighbor's and was gone a few minutes; and appellant was seen going away from the house, with a package under his arm, corresponding in size to the package of sugar in the house, and wrapped in the same character of paper. Prosecuting witness entered the house immediately, and found the sugar was gone. These facts, coupled with the similarity of the sugar found in appellant's home, and his contradictory and false statements as to his possession of the same, forces us to the conclusion that the verdict of the jury is supported by the evidence. The judgment is affirmed.

Affirmed.