Jackson v. State

• Decision Date: 11 May 1904
• Parties: JACKSON v. STATE.
• Court: Texas Court of Criminal Appeals

80 S.W. 631

JACKSON v. STATE.

Court of Criminal Appeals of Texas.

May 11, 1904.

On rehearing.

For former opinion, see 79 S. W. 521.

L. J. Truett, Asst. Co. Atty., R. C. Merritt, Co. Atty., and Howard Martin, Asst. Atty. Gen., for the State.

DAVIDSON, P. J.

At our recent Dallas term the judgment herein was reversed and the cause remanded. 79 S. W. 521. The state makes a motion for rehearing with the request to recall the mandate. The judgment was reversed because of the refusal of the court to give instructions requested by appellant, the theory of the state being that appellant would be guilty even under such requested instructions. The facts show, for the state, that the accomplice, Clarence Wilkins, at the request of appellant, committed the theft, and that although appellant was not present when the theft was committed, it having been done at his instigation and request, by Wilkins, this constitutes appellant a principal, the case being a misdemeanor. Appellant's theory is that, if Wilkins committed the theft of the pants, it was without his connivance, instigation, or knowledge. The original opinion states that appellant requested the court, in substance, by written instructions, to charge the jury in regard to the state of case made by his account of his possession of the pants, and if the facts stated were believed by the jury to be true, or there was a reasonable doubt in their minds of its truthfulness, they should acquit. These requested instructions were refused, and the judgment reversed because of such refusal. The opinion further states: "If appellant was not in some way connected with the original taking, so as to constitute him a principal, he would not be guilty of the theft, even though he should have received the property knowing it to have been stolen. Under this statement, if the jury believe appellant came in possession of the property as stated by him, he could not be guilty of the theft." The motion for rehearing seems to be predicated on the theory that the reversal occurred upon one of the requested instructions, which is as follows: "If you find and believe from the evidence that Clarence Wilkins asked defendant to go with him to Dallas, and defendant answered him that he had no pants, and thereupon Clarence Wilkins obtained the clothes, or if you have a reasonable doubt on this point, you will find defendant not guilty" —this was only one of the requested instructions—the theory of the state being that the facts stated in this requested instruction did not militate against the state's case, for the reason that the evidence introduced for the state excluded appellant's presence at the time of the taking, and that he took them through the agency of Clarence Wilkins. The opinion did not specify any particular charge, but held that the court erred in not giving the appellant's theory as made by his account of his possession. There are several of these charges requested, seeking to submit appellant's theory of the case. For instance, this was requested and refused: "Unless the evidence in the case satisfies you beyond a reasonable doubt of the connection of defendant with the taking of the pants, before the same were...