Ewing v. State

• Court: Texas Court of Appeals
• Writing for the Court: Davidson
• Citation: Ewing v. State, 16 S.W. 185, 29 Tex.App. 434 (Tex. App. 1891)
• Decision Date: 21 March 1891
• Parties: EWING v. STATE.

16 S.W. 185

EWING v. STATE.

Court of Appeals of Texas.

March 21, 1891.

On motion for rehearing. Appeal from district court, Gonzales county; GEORGE McCORMICK, Judge.

Atkins & Abernethey, for appellant. R. H. Harrison, Asst. Atty. Gen., for the State.

DAVIDSON, J.

On a former day of this term the judgment in this cause was affirmed.¹ The appellant has filed and submitted for our consideration a motion for rehearing, in which, for the reasons stated, he asks that the affirmance be set aside, and the judgment be reversed, and the cause remanded for another trial. It is only necessary to notice two of the grounds of the motion, the others being not well taken. Upon the trial below the court correctly permitted evidence of the appellant's statement to Tripp and Hopkins. They testified to the fact that defendant had in his possession a large quantity of fresh beef, and that they challenged his lawful right thereto, and demanded an explanation of him as to where he obtained it. He was asked "where he got so much beef, and he defiantly said he stole it, and if we did not believe that he stole it to prove it." Upon this phase of the case the court charged the jury as follows to-wit: "If you find that certain fresh beef was found in the possession of the defendant, and when called upon to explain how he acquired such possession he explains it otherwise than by the unlawful acquisition thereof, and his explanation is a reasonable and probably true one, then in such case the defendant should be acquitted, unless the prosecution has proven such explanation of possession is false." The testimony, if true, was a confession of guilt on the part of defendant of the theft of the beef about which the statement was made. It was inculpatory, not exculpatory. The court's charge was upon the theory of exculpatory evidence, and instructed the jury that they should acquit if the explanation of possession was "otherwise than by the unlawful acquisition thereof." This evidence was not exculpatory in its nature, but admitted the unlawful acquisition of the beef found in his possession. The charge was misleading in its nature. Again, the statement made to Tripp and Hopkins did not authorize the charge given as to defendant's explanation of his possession. His statement was that he obtained the beef by fraudulent means, and not otherwise. This charge should not have been given. The evidence did not authorize it, and it was promptly excepted to at the time by the defendant. ...