Alexander v. State

• Decision Date: 13 December 1905
• Citation: 90 S.W. 1112
• Parties: ALEXANDER v. STATE.
• Court: Texas Court of Criminal Appeals

90 S.W. 1112

ALEXANDER v. STATE.

Court of Criminal Appeals of Texas.

December 13, 1905.

Appeal from District Court, Falls County; Sam R. Scott, Judge.

Sandy Alexander appeals from a conviction. Affirmed.

Rehearing denied January 17, 1906.

Rice & Bartlett, for appellant. Howard Martin, Asst. Atty. Gen., for the State.

BROOKS, J.

Appellant was convicted of burglary, and his punishment fixed at confinement in the penitentiary for a term of two years.

In the motion for a new trial appellant complains that the court's charge on circumstantial evidence fails to instruct the jury, in effect, that the evidence must be of so conclusive a nature as to exclude every reasonable hypothesis, except the guilt of defendant, and also produce a reasonable and moral certainty that the accused, and no other person, committed the crime. An examination of the charges shows that the court omitted the phrase "and no other person." The charge does state that the facts and circumstances proved must not only be consistent with the guilt of the accused, but be inconsistent with and exclude any other reasonable hypothesis or conclusion than that of his guilt, and "produce in your minds a reasonable and moral certainty that the accused committed the offense." This being true, we do not think there is any reversible error in omitting the clause "and no other person."

The second ground of the motion is that the court erred in failing to give his special charge No. 1, on the subject of accomplice's testimony. We do not think there was any error in refusing this charge. The evidence, in substance, shows that Martha Parks' home was burglarized by entering the back door, which was propped by an ax on the inside, and that no one could enter said door without removing the ax, and then pushing the door open. Mary Shell testified that late in the evening she sent her children, Lizzie and Lonnie, after some wood. They tarried and she went in search of them. After scolding the children for their tardiness, she started back home, and saw appellant (whom she well knew) coming out of the back door of Martha Parks' house. He went down into a ravine back of the house, and finally went towards his own home. The children, Lonnie and Lizzie Shell, testified to seeing defendant coming from the house and going into the ravine; that when he entered the ravine, or "Old River," as they term it, some cattle (one being belled) took fright at his presence and ran off; that they knew defendant and recognized him. The owner of the house, Martha Parks, was away from home at the time the burglary was committed. Upon her return, finding things in general disorder, and her suspicions being aroused, on investigation she discovered $5.85 had been taken out of the safe, the key to...