Crane v. State

• Decision Date: 24 November 1909
• Citation: 123 S.W. 422
• Parties: CRANE v. STATE.
• Court: Texas Court of Criminal Appeals

Page 422

123 S.W. 422

CRANE v. STATE.

Court of Criminal Appeals of Texas.

November 24, 1909.

On Motion for Rehearing. December 22, 1909.

Appeal from District Court, Mitchell County; James L. Shepherd, Judge.

T. C. Crane was convicted of horse theft, and he appeals. Affirmed.

F. G. Thurmond, for appellant. F. J. McCord, Asst. Atty. Gen., for the State.

DAVIDSON, P. J.

Appellant was convicted of horse theft; his punishment being assessed at ten years' confinement in the penitentiary.

Appellant reserved two bills of exception, which were filed too late to be considered. Court adjourned on the 18th of June. The bills were filed on the 17th of July following. There was an order of 20 days allowed for the filing of bills of exception. This was in accordance with the statute. The bills were filed after the time allowed by the court and provided by the statute, and therefore cannot be considered.

1. Several grounds of the motion for a new trial suggest error on the part of the court in admission of testimony. There being no bill of exception presenting these matters, they cannot be considered. It is insisted the court erred in not charging the law applicable to alibi. We are of opinion, under the evidence in this case, that this contention is not well taken. The case is one purely of circumstantial evidence, and the question of alibi was not an issue in the case, otherwise than suggested under the general theory of circumstantial evidence. We are of opinion that the failure of the court to charge on alibi is not of such material character as would require a reversal. An appropriate charge presenting the law of circumstantial evidence was given.

2. There were two special charges requested, which were refused by the court. In the first charge the court was requested to charge the jury that "all testimony as to the contents of the bill of lading, including name of shipper, sought to be introduced in evidence in this case, was by the court excluded from your consideration, and same shall not be considered by the jury for any purpose." On the face of this charge, such evidence was not introduced, but only sought to be introduced. We are of opinion it was not necessary to instruct the jury as requested.

In the second special charge the court was requested to instruct the jury that an indictment is no evidence of guilt, and the fact that there is an indictment against the defendant in this case should not be considered by them as a circumstance of guilt. There is nothing shown in the record that it was an insistence before the jury that the indictment should be regarded by them as evidence of guilt in any manner, either by argument or otherwise, and we therefore are of opinion the court did not err in refusing this requested instruction.

3. Appellant insists the evidence is not sufficient to warrant the finding of the jury. As before stated, the testimony is circumstantial; but we are of opinion that it is sufficient to justify the verdict of the jury.

There are a great many facts and circumstances in the case, which we think authorized the jury to conclude that appellant was a guilty party in the theft of the horses; but we deem it unnecessary to collate these facts and circumstances.

The judgment is therefore affirmed.

BROOKS, J., absent.

On Motion for Rehearing.

DAVIDSON, P. J.

At a former day of this term the judgment herein was affirmed. Motion for rehearing is urged, on account of the insufficiency of the evidence and the failure of the court to charge the law applicable to alibi.

In the former opinion it was stated that the bills of exception would not be considered by reason of the fact that they were filed after 20 days subsequent to the adjournment of the term of court at which the trial occurred; that under the law then existent bills of exception were required to be filed within 20 days after adjournment of the term. Under the act of the Thirtieth Legislature (Laws 1907, p. 446, c. 7) the statement in the opinion is correct. This law was still in force at the time of the trial of appellant, which occurred in June, 1909. For fear this opinion might be misleading as to future practice in regard to this matter, we call attention to the fact that the act of the Thirty-First Legislature (Laws 1909, p. 376, c. 39) provides that bills of exception and statements of fact can be filed at any time within 30 days after the adjournment of court, and for satisfactory reasons the trial court may even then extend the time in which to file such statements of fact and bills of exception. The act of the Thirty-First Legislature, however, was not in force at the time of appellant's trial. It was passed on the 1st of May, 1909, but did not become effective until 90 days after the adjournment of the Legislature, which placed it in effect...