Orr v. State

• Decision Date: 26 January 1944
• Docket Number: No. 22700.,22700.
• Citation: 177 S.W.2d 210
• Parties: ORR v. STATE.
• Court: Texas Court of Criminal Appeals

Page 210

177 S.W.2d 210

ORR v. STATE.

No. 22700.

Court of Criminal Appeals of Texas.

January 26, 1944.

Commissioners' Decision.

Appeal from District Court, Cass County; R. H. Harvey, Judge.

Johnnie Orr was convicted of theft of an automobile over the value of $50, and he appeals.

Reversed and remanded.

Charles W. Hackett, of Texarkana, for appellant.

Ernest S. Goens, State's Atty., of Austin, for the State.

KRUEGER, Judge.

The conviction is for the theft of an automobile over the value of $50. The punishment assessed is confinement in the state penitentiary for a term of three years.

Appellant brings forward a number of questions relating to the court's action in overruling his first application for a continuance and the refusal to give his requested instruction to the jury. We do not deem it necessary to discuss the question pertaining to the court's action in overruling the application for a continuance as that matter may not arise upon another trial.

The chief question presented in the record relates to the refusal of the court to submit to the jury appellant's Special Requested Charge No. 6, which reads as follows: "Gentlemen of the Jury: You are instructed that even though you believe from the evidence that Johnnie Orr knew at the time he received the tires from Maxey Lott that same were stolen, he would not be guilty as charged in the indictment unless you further find that he was actually present in Cass County, Texas, at the time and place where said automobile was stolen; actually participating or assisting either by acts or encouraging by words or gestures, and unless you do find that he was present at the time of the taking, or if you have a reasonable doubt thereof, you will acquit the defendant, and so say by your verdict, `Not Guilty'."

The only instruction which the court gave touching the subject is as follows: "If you believe from the evidence, or have a reasonable doubt thereof, that Maxey Lott stole the automobile in question and the defendant had no connection with the stealing of the same, then you will acquit the defendant."

The foregoing instruction by the court did not fully present appellant's defensive theories in an affirmative manner. The evidence shows that Maxey Lott was the person who was first seen in possession of the five tires taken from the alleged stolen automobile which he sought to sell to one Hopkins who, at the time was rooming at the home of Mrs. Redman, but Hopkins, after consulting some of his friends, declined to purchase them. In the meantime, Mrs. Lott, wife of Maxey Lott, had gotten in touch with Hardy...