Jazo v. State , 114 Tex. Crim. 567 ( 1929 )

Appellant renews his contention that the evidence is insufficient to support the conviction. In our original opinion the evidence was rather fully reviewed and the reasons given for believing it sufficient. Our views remain unchanged and necessity for writing further on the subject is not apparent.

The evidence shows that the fatal shot was fired by one Magana, appellant being present at the time. It is contended that the state relied wholly on circumstantial evidence to show appellant's guilty participation in the killing and that a charge on circumstantial evidence was demanded. This might have presented a rather serious question if raised at the proper time. Burrell v. State, 16 Tex. 713; Anderson v. State,85 Tex. Crim. 411, 213 S.W. 639; Early v. State, 50 Tex. Crim. 344,97 S.W. 82; Pizana v. State, 81 Tex.Crim. R.,193 S.W. 671; Joyce v. State, 90 Tex.Crim. R., 234 S.W. 895; Davis v. State, 107 Tex.Crim. R., 296 S.W. 895.

However, no objection to the charge for omission to instruct on the subject was presented; neither was any special charge requested which would call the court's attention to the matter. Under such circumstances the court can not in obedience to Articles 658 and 666 Cow. C. P. entertain a complaint that the court did not instruct on the law of circumstantial evidence. Charles v. State, 85 Tex.Crim. R., 213 S.W. 266; Cobb v. State, 105 Tex.Crim. R., 286 S.W. 1086; Givens v. State,98 Tex. Crim. 651, 267 S.W. 725.

The motion for rehearing is overruled.

Overruled.

ON SECOND MOTION FOR REHEARING.