Bacon v. State

• Decision Date: 08 February 1911
• Citation: 134 S.W. 690
• Parties: BACON v. STATE.
• Court: Texas Court of Criminal Appeals

134 S.W. 690

BACON v. STATE.

Court of Criminal Appeals of Texas.

February 8, 1911.

Appeal from District Court, Leon County; S. W. Dean, Judge.

Lon Bacon was convicted of theft, and appeals. Affirmed.

C. E. Lane, Asst. Atty. Gen., for the State.

PRENDERGAST, J.

The appellant was indicted for the theft of $295 in money from H. Spruce. The jury found him guilty of theft of over the value of $50, and assessed his punishment at two years' confinement in the penitentiary. The evidence in the case amply sustains the conviction.

1. The first ground of exception by appellant is the action of the lower court in overruling his motion for a continuance. The application states that it was the first application. The judge, in approving the bill, states that it was the second application, and contains only the requisites of the first. The appellant, having accepted this bill of exceptions as allowed, is bound thereby, and we hold that it is the second application. It contains neither of the requisites of a second application. Code Cr. Proc. art. 598. Besides this, the testimony of the absent witness seems to be cumulative only. There was no error in the action of the court overruling this application for continuance.

2. The second complaint is of the fourth paragraph of the charge of the court, claiming that the same was a misdirection to the jury, in that the court charged on the law of explanation of the possession of recently stolen property, and that it was upon the weight of the testimony in assuming that the property delivered by defendant to the injured party was stolen, and because the question of the recent possession of stolen property and the defendant's explanation of such possession was not raised by the evidence. The question of the defendant's explanation of his possession of the recently stolen property was directly in issue by the testimony offered by the defendant himself. When his explanation was offered in evidence, the state objected because it was a self-serving declaration. The court overruled this, stating that he would permit him to prove explanation of his possession. Such declarations were proven by his own witnesses, Penn Hammett, Sam Stockner, and his wife.

The other ground of complaint against the charge on this subject is without merit. The charge, in substance, on that question was this: "If you believe from the evidence that the property described in the indictment had been stolen from H. Spruce, and that recently thereafter the defendant was found in the possession thereof, and when his possession was first questioned he made an explanation of how he came by it, and you believe that such explanation is reasonable and probably true, and accounts for defendant's possession in a manner consistent with his innocence, then you will consider such explanation as true, and you will acquit the defendant. If, on the other hand, you believe such explanation was unreasonable, and did not account for defendant's possession in a manner consistent with his innocence, or if such explanation was reasonable and probably true, and did account for defendant's possession in a manner consistent with his innocence, but the state has shown the falsity thereof, then you will take the possession of the defendant, together with his explanation, in connection with all the other facts and circumstances, if any, in evidence, and if you believe the defendant guilty beyond a reasonable doubt, you will so find; otherwise, you will acquit the defendant."

This charge, taken as a whole, was not on the weight of the testimony, and did not assume that the property was stolen, but submitted that question to the jury clearly and aptly. The issue in the case, as stated by appellant in his motion for a new trial, in substance, was whether or not defendant took the property from the possession of H. Spruce (if he took it) with intent to appropriate it to his use and benefit and to deprive the owner of the value thereof, or (if he took it) whether he did so with the intent to return it to the owner. The main charge of the court on this subject, to which there is no complaint, clearly submits this question to the jury, with the appropriate definitions of theft and the intent with which the property was taken, if it was, by the defendant.

3. The next ground assigned is that the court erred in failing to charge the jury on the law of recent possession of alleged stolen property unexplained, claiming that the evidence shows that the appellant was in possession of said alleged recently stolen property, and that he did not assert a distinct claim of ownership thereto, but, on the contrary, asserted said ownership to be in the injured party. There was no error in the court's charge on this subject, because all of these matters were clearly and distinctly submitted to the jury. The appellant himself offered proof on this question, and his whole defense appeared to be on that alone. It was all aptly and appropriately submitted to the jury by the court, and found against the appellant.

4. The next ground is that the verdict of...