McClelland v. State

ON MOTION FOR REHEARING.

MORROW, Presiding Judge. —

Appellant reiterates his complaint of the failure of the court to instruct the jury upon the law of circumstantial evidence, stating in his motion that the court’s qualification to his bill of exceptions, which was referred to in the original hearing, is not in accord with the facts. An examination of the statement of facts reveals the following:

The witness Crawford, seeing a person upon the street, asked if he could get a pint. The party went into the rear of a domino parlor. The witness followed and received from the person a bottle of whiskey, for which he paid him $3.50. The witness declined to identify the appellant as the seller. The witness said, however, that just as he received the bottle from the seller, Officer Mitchell grabbed them- both. They were arrested and taken to jail, and the bottle containing the liquor was seized and afterward identified upon the witness stand as containing the whiskey purchased by Crawford from the appellant. Mitchell knew the appellant and identified him as the person from whom Crawford got the liquor and from whom it was seized. Mitchell testified that he knew the appellant; that he saw him go into the back of a domino parlor followed by Crawford ; that he saw a bottle flash and money pulled out; that as the men came out he arrested both Crawford and McClelland and took charge of the whiskey. The witness testified that when the two men went into the back of the domino parlor they were out of his sight for a moment, but that he saw them through the window pass the bottle and the money; that there were no other persons in the part of the building where the transaction took place. The court’s qualification to the bill of exceptions is in accord with our understanding of the evidence. At all events, the statement of facts from which we have given a synopsis, in our judgment, would not warrant a reversal of the conviction because the court failed to instruct the jury upon the law of circumstantial evidence.

The motion is overruled.

Overruled.