Appeal from Tyler County Court; A. G. Reid, Judge.
HARPER, J.
This is a companion case to that of Lee Laird v. State, 155 S. W. 260, recently decided by this court. Appellant and Laird were charged by information with disturbing a congregation gathered for religious worship, convicted, and his punishment assessed at a fine of $25.
The first three bills of exception complain of the action of the court in refusing to permit him to prove that more than a year prior to this occurrence, and before appellant had moved into the community, some one had shot into the Cherokee churchhouse. That some person other than defendant may, at some time prior thereto, have committed a crime against this property would tend to elucidate no issue in this case, and would not tend to show who committed the offense on this occasion. There was no evidence offered as to who did the shooting, and no evidence placing such person in proximity to the church on this occasion. Therefore the court did not err in excluding the testimony.
One of the main contentions of appellant is that the court erred in refusing to charge on circumstantial evidence, and in refusing his special charge presenting that issue. A short synopsis of the testimony offered by the state is as follows:
Miss Ada Barnes testified: "I was at Cherokee church about November 4, 1911; we got there about 7 o'clock; we had just arrived, and I had stopped on the front step
of the church, and was standing there at the time the jug was thrown through the window, and when I heard the crash of the jug through the window immediately thereafter, just as soon as a person riding fast could travel the distance from the window that was broken to the corner of the house, I saw Bob Haynes and Lee Laird pass the corner of the house, within about six feet of where I was standing. I saw their faces and recognized them, and I also recognized the horses as the horses of Lee Laird and Bob Haynes. The moon was shining very bright. Lee Laird was riding Bob Haynes' horse, and Bob Haynes was riding Lee Laird's horse. Lee Laird's horse is a gray, and Bob Haynes' horse was a sorrel. There was only those two when they ran by where I was standing. I saw Lee Laird and Bob Haynes again about 15 minutes after the throwing of the jug, they came back towards the church from the direction they had gone, as they rode by after the throwing of the jug. There was to the best of my recollection six of us at the church at the time, myself, my sister Pearl, my brother Arthur, Miss Nellie Lockhart, Lillian Platt (now Davis), and Lee Vinson. We were there for the purpose of attending church; my father had told us there would be preaching there that night. We were conducting ourselves in a lawful manner."
Miss Nellie Lockhart testified: "I was at Cherokee church November 4, 1911. I was sitting by the window that the jug came in at in about three feet of the window. I was not facing the window, but I turned when the jug came in at the window and saw two persons riding off, they were riding a gray horse and a sorrel horse. I did not recognize the parties on the horses; they had their backs to me. There was only two of them, and neither was riding a mule. It was a bright moonlight night. Some 19 minutes after the jug was thrown in at the window, Bob Haynes and Lee Laird came up to where we were standing a little distance from the church, and Lee Laird was riding a gray horse and Bob Haynes a sorrel. We were at the church for the purpose of attending preaching; this happened in Tyler county, Tex."
Arthur Barnes testified: "I was at Cherokee church November 4, 1911. There was six of us went there to preaching. I do not know who threw the jug; they were riding fast. I saw two parties come by after the jug was thrown in at the window; the horses they were riding were Lee Laird's and Bob Haynes'. I did not recognize the parties on the horses. The horses were a sorrel and a gray horse, and I saw Laird and Haynes a few minutes after the jug was thrown in at the window, and they were riding horses like the parties were riding when the jug was thrown in at the window."
Under every decision rendered by this court since its organization, this testimony would not call for a charge on circumstantial evidence. Miss Ada Barnes testifies positively she recognized the parties at the time, and the other witnesses testify to such facts and circumstances as would make the case one of positive testimony. Even the defendant's witnesses testify to such facts. Lee Vinson testified for defendant: "I was at Cherokee churchhouse on the night of November 4, 1911. There were six of us. We went there to attend preaching. I was there with Pearl Barnes, now my wife. It was a bright moonlight night. I heard the jug strike the window. I was sitting inside the church. I jumped up and ran to the door, when the jug crashed through the window, and saw the parties riding off. I could not tell who it was; they were riding fast. I could not tell whose horses it was. It might have been mules. I did see Lee Laird and Bob Haynes about 10 minutes after the jug was thrown. Lee Laird and Bob Haynes came up to where we were about 10 minutes after the jug was thrown; they came from the direction that the parties had gone that ran by at the time the jug was thrown. I saw them again a while afterwards. They passed us on their horses. Laird was riding a gray horse and Haynes was riding a sorrel ball-faced horse." This witness was the only one present on the occasion that appellant introduced. For a long list of authorities holding that such testimony as this does not call for a charge on circumstantial evidence, see Branch's Crim. Law, § 203, one of the rules stated being that if the facts proven are in such close juxtaposition to the factum probandum as to be equivalent to direct testimony, a charge on circumstantial evidence is not required (citing Wheeler v. State, 15 Tex. App. 612...
