Dixon v. State

• Citation: 83 S.W.2d 328
• Decision Date: 10 April 1935
• Docket Number: No. 17455.,17455.
• Parties: DIXON v. STATE.
• Court: Texas Court of Criminal Appeals

83 S.W.2d 328

DIXON v. STATE.

No. 17455.

Court of Criminal Appeals of Texas.

April 10, 1935.

Rehearing Denied May 29, 1935.

Commissioners' Decision.

Appeal from District Court, Mills County; Few Brewster, Judge.

Grover Dixon was convicted of theft of one sheep, and he appeals.

Affirmed.

J. Mitch Johnson, of San Saba, and J. Edward Johnson, of Early & Johnson, of Brownwood, for appellant.

Henry Taylor, Dist. Atty., of Temple, and Lloyd W. Davidson, State's Atty., of Austin, for the State.

KRUEGER, Judge.

The appellant was tried and convicted of the offense of theft of one sheep, and his punishment was assessed at confinement in the state penitentiary for a term of two years.

The record shows that some time between the 1st day of December, 1933, and the 1st day of February, 1934, Jim Soules lost a sheep. Some time thereafter he found a sheep on the premises of the appellant's father, with whom the appellant, who was a single man, resided. The sheep which Soules found at the Dixon place and which he claimed to be his appeared to be about three years old and was branded a "W" with red paint on each side near the shoulder. This brand had been covered with black paint and a stripe across its hip. The ears were cut off square. Mr. Soules asked the appellant if it was his sheep, to which he replied that it was, and, when the witness asked him where he got it, he said from Mr. Arb Fulton at Lometa. A. J. Fulton testified that he sold some sheep to the appellant in the fall of 1931; that it was his best judgment that it was in 1931, but he could not be positive about the time. It was his impression that the sheep which he sold to appellant were five or six years old. Sam Rahl testified that he was present at the time Mr. Soules made an examination of the sheep. We quote from his testimony: "The question asked the defendant was how old the sheep was and he said it was six or seven years old and Mr. Soules looked in the sheep's mouth and it was three or four years old. I saw Mr. Soules look at the sheep while all the persons were there at the time, and when some one made the statement that the sheep was a three or four year old, then the defendant claimed he got it from Mrs. Casbeer." Mrs. Casbeer testified that she sold four ewes to appellant in 1934. The appellant did not testify in his own behalf.

The court in his charge instructed the jury that, if they believed from the testimony that appellant purchased the sheep in question from either Mr. Fulton or Mrs. Casbeer, or if they had a reasonable doubt thereof, they should acquit the appellant and say by their verdict "not guilty," but the appellant contends that, in addition to the foregoing charge, the court should have instructed the jury on the law of exculpatory statements. We do not agree with the appellant in his contention because the state did not rely for a conviction upon the appellant's confession. In fact, appellant made no confession; he made an explanation when first questioned about his possession of recently stolen property of how he came into possession of the same, and the court in his charge pertinently instructed the jury upon that phase of the case. In the case of Freeney v. State, 123 Tex. Cr. R. 488, 59 S.W.(2d) 385, 387, this court, speaking through Judge Hawkins, said: "The following cases are illustrative of the proposition that the refusal of a charge on exculpatory statements does not call for reversal in every instance, even though timely request is made for such instruction. Nichols v. State, 110 Tex. Cr. R. 432, 10 S.W.(2d) 109; Bradley v. State, 107 Tex. Cr. R. 435, 295 S. W. 606; Harris v. State, 103 Tex. Cr. R. 479, 281 S. W. 206; Simpson v. State, 97 Tex. Cr. R. 57, 263 S. W. 273; Tidwell v. State, 40 Tex. Cr. R. 38, 47 S. W. 466, 48 S. W. 184; Pickens v. State, 86 Tex. Cr. R. 657, 218 S. W. 755; Casey v. State, 54 Tex. Cr. R. 584, 113 S. W. 534." Under the facts in this case we do not believe that the court committed any error in declining to instruct the jury on the law of exculpatory statements.

No error appearing in the record, the judgment of the trial court is in all things affirmed.

PER CURIAM.

The foregoing opinion of the Commission of Appeals has been examined by the judges of the Court of Criminal Appeals and approved by the court.

On Motion for Rehearing.

LATTIMORE, Judge.

Appellant strongly insists in his motion for rehearing that this case should be reversed for the failure and refusal of the trial court to charge the jury that the state, having introduced in evidence exculpatory statements of appellant, would be bound thereby, and same should be taken as true unless refuted by other evidence in the case. The facts bearing on this contention are set out in our original opinion, but are here restated in somewhat different form. In April or May, 1934, Mr. Soules found in appellant's possession a sheep which had disappeared from Soules' pasture a few months before. Its paint brand had been changed and its ears cut. Appellant was present when the sheep was examined by Soules, who then asked appellant if that was his sheep, to which appellant replied that it was. Asked where he got it, appellant said he got same from Mr. Fulton of Lometa. The age of the sheep was then shown from an examination of its mouth, to be three years. Appellant at once changed his statement and said he got it from Mrs. Casbeer. Both Mr. Fulton and Mrs. Casbeer were witnesses and swore that they did not sell appellant the sheep. Appellant did not testify nor did he introduce any evidence.

For various reasons we are not able to agree with appellant. He never did admit or confess that he stole this sheep. He was found in possession of it. When confronted, he made a statement in explanation of his possession, which he presently retracted, and then made a wholly different explanation; neither of said statements being any admission or confession of guilt on his part. All the cases hold that the law applicable is always determined by the facts.

In Jones v. State, 29 Tex. App. 20, 13 S. W. 990, 25 Am. St. Rep. 715, discussing the propriety of a charge like that contended for by appellant in the case before us, this court said: "We think that, under the facts of this case, the instruction was pertinent, correct in principle, and should have been given. We do not wish to be understood as holding that, in all cases when the admissions or confessions of a defendant are admitted in evidence against him, it is necessary to give such or a similar instruction to the jury. What we decide is that, in this case, in which the criminating evidence consists almost entirely of defendant's admissions that he killed the deceased, the instruction should have been given in view of the fact that the exculpatory portion of defendant's statements about the homicide were not shown by the state's evidence to be untrue."

In Slade v. State, 29 Tex. App. 381, 16 S. W. 253, 254, an opinion by the same court a year later, this court held such a charge not necessary, and said: "Now, it is not decided in the Pharr Case that, though correct, a charge must always be given when requested, in every case in which the state introduces in evidence the admissions of the accused. This question was not before the court in the Pharr Case. Under what circumstances must such a charge be given? This question is answered in Jones v. State, 29 Tex. App. 20, 13 S. W. 990 . When the state relied for conviction alone upon the admissions and confessions of the accused, and such confessions or admissions contain exculpatory or mitigating matters, such a charge should be given. In this case the state did not rely upon confessions or admissions alone for conviction. These were introduced mainly for the purpose of impeaching the accused, who testified in the case. There was a large mass of evidence adduced by the State in rebuttal of these confessions and admissions."

The case was affirmed. In Trevenio v. State, 48 Tex. Cr. R. 207, 87 S. W. 1162, 1163, this court, speaking through Judge Davidson, after quoting from the Jones Case, supra, said: "It will be noted, as stated, in the case cited the state relied almost solely on the confessions of accused, which were introduced to the effect that he committed the homicide, but claimed he did so in self-defense. In the case in hand there were no admissions of guilt or confessions. The statements were in the nature of an alibi, and exculpatory entirely."

Proceeding in the opinion, after quoting from the Slade Case, supra, the quotation which we have above set out, this court then says: "In such state of case the charge is not required. The Slade Case is more in consonance with this case. There is not a criminative fact stated by appellant in his testimony before the grand jury. On the contrary, every word is entirely exculpatory, and a complete denial of his connection with the transaction in any manner whatever."

It appears in the opinion of this court in the Trevenio Case that the trial court gave an affirmative charge presenting the defensive theory embraced in the exculpatory statements made by the accused.

In the recent case of Tyler v. State, 121 Tex. Cr. R. 25, 27, 53 S.W.(2d) 64, 65, this court said, in discussing the refusal of a charge such as is here contended for: "We do not consider that this shows reversible error. The state did not rely for conviction alone upon the admission of the appellant," and Mr. Branch's Annotated P. C. § 73, was quoted as follows: "If the state does not rely for a conviction alone upon the admission or confession of defendant, but introduces evidence in rebuttal of the confession and admission, it is not error to refuse to charge that the state is bound by the whole of an admission or confession containing exculpatory statements," citing McKinney v. State, 48 Tex. Cr. R. [402] 404 ; Whorton v. State, 69 Tex. Cr. R. 1 ; Loan v. State, 69 Tex. Cr. R. 221 [153 S. W. 305, ...