Burk v. State

The judgment was affirmed at a former day of this term and is now on rehearing. Appellant's counsel have filed a very able brief reviewing the questions heretofore passed on by the court. Among other things appellant questions very seriously the failure of the court to instruct the jury on circumstantial evidence. We stated in the original opinion, in answer to this proposition that the confession of appellant, to the effect that he (Maulding) and Rip Pearce took the horse, in connection with other testimony showing Maulding was left in charge of the horse in the absence of Linn, was sufficient to take the case out of the rule requiring charge to be given on circumstantial evidence. Appellant's counsel admit this might be good as to theft, but not as to embezzlement, for which appellant was convicted. We do not believe appellant is correct as to this proposition. R.S. Coon, the owner of the horse, says in his testimony, that when Linn was away, Maulding with Holman had charge of the ranch. As to the horses he says they were to look after them. And again he says, "The horses were under their control during the absence of Linn." We think this is sufficiently direct and positive to show the agency of Maulding. Then appellant's confession that Maulding (who by positive evidence was shown to be the agent of prosecutor in charge of the horses) in connection with appellant and Pearce took the horse, would show that they took him in connection with said agent. Under our view, this would be positive testimony to that effect, and would not require a charge on circumstantial evidence.

Appellant also insists in his motion that the judgment of the court adjudicates appellant guilty of theft and not of embezzlement, and therefore the judgment must be reversed for this alleged fundamental error. We understand the rule to be as to such matters, that this court will reform and correct such error in the judgment under article 904, Code Criminal Procedure. An inspection of the record here shows that appellant was convicted of embezzlement under the fifth count of the indictment. The judgment adjudicates him guilty of theft; and the sentence is for embezzlement. For decisions authorizing the correction of the judgment, see Turner v. State, 44 Tex.Crim. Rep.; Burks v. State, 55 S.W. Rep., 824. The judgment is accordingly corrected and reformed, so as to adjudicate appellant guilty of embezzlement in accordance with the verdict of the jury, etc.

We do not deem it necessary to discuss other propositions raised on the motion for rehearing, but adhere to the original opinion. The motion for rehearing is overruled.

Overruled.

Brooks, Judge, absent.