Spears v. State

• Decision Date: 28 October 1925
• Docket Number: (No. 9188.)
• Citation: 281 S.W. 555
• Parties: SPEARS v. STATE.
• Court: Texas Court of Criminal Appeals

281 S.W. 555

SPEARS v. STATE.

(No. 9188.)

Court of Criminal Appeals of Texas.

October 28, 1925.

On Motion for Rehearing February 24, 1926.

On Application to File Second Motion for Rehearing March 24, 1926.

Commissioners' Decision.

Appeal from Hill County Court; W. L. Wray, Judge.

Tom Spears was convicted of theft of property under the value of $50, and he appeals. Affirmed.

Morrow & Stollenwerck, of Hillsboro, for appellant.

Sam D. Stinson, State's Atty., of Austin, and Nat Gentry, Jr., Asst. State's Atty., of Tyler, for the State.

BERRY, J.

The appellant was convicted in the county court of Hill county for the offense of theft of property under the value of $50, and his punishment assessed at confinement in the county jail for a term of 180 days.

The facts show that M. L. Gray, the alleged injured party, on the 23d of February, 1924, had an accident near Aquilla, and left his car by the side of the road on Sunday afternoon; that at the time he left the car it had four automobile casings on it, and, when he came back Monday morning, one of the rear casings had been taken off. The missing casing was a 30 × 3½ Goodyear cord casing, with a grey United States tube. It was an oversize casing. This witness further testified that he found this casing on a Ford roadster belonging to the defendant in the town of Hillsboro. The appellant testified that the casing, which was in court, and which was identified by Gray as being the one he lost, was secured by him by purchase from a Bohemian on the Sunday night, the 23d day of February, 1924. This is a sufficient statement of the facts.

By bill of exceptions No. 1 appellant complains at the court's action in refusing to instruct a verdict of not guilty. This complaint is without merit. The state's testimony, if believed, was sufficient to warrant a conviction. The testimony of the appellant was sufficient to account for his possession of the stolen casing in a manner consistent with his innocence. The issue thus presented was one for the jury, and, under the facts contained in this record, this court will not disturb the verdict rendered.

By bill of exceptions No. 2 appellant complains that the identification of the casing alleged to have been stolen was insufficient, in that the testimony shows that the casing contained a number (32296) which could be easily read, and, in view of the fact that the prosecuting witness was not able to say that this was the factory number of the casing lost by him, and in view of the further fact that he did not produce the dealer from whom he had bought the casing, that he should not have been permitted to testify as to the identity of the casing lost with the one found in the possession of the defendant. In other words, it is appellant's contention that the state witness did not sufficiently identify the stolen casing, and that it was really in his power to definitely identify it by the number that was on it, and that, in the absence of his identifying it by the number, he was not entitled to resort to other means of identification. We cannot agree with appellant's contention in this respect. The witness repeatedly stated it was his casing, and also stated that he identified it by certain cuts that were found on the casing, claiming that same were made by mud chains. Appellant's objection, as stated above, would go to the weight and credibility of this testimony, and not to its admissibility.

Bill of exceptions No. 3 seeks to raise the question of misconduct of the jury. He introduced but one of the jurors by whom he sought to show misconduct, and this juror failed to testify to anything that could be regarded as improper under any rule announced in any of the decisions of this court.

The court gave a charge on circumstantial evidence, and by special charge No. 2 appellant requested the court to give a charge on circumstantial evidence in the identical language that was given, but in addition thereto requested the court to also state in said charge the following:

"Unless you believe that the evidence on behalf of the state has measured up to the foregoing requirements, and unless you believe that every reasonable theory of the appellant's possession of the casing in question other than his guilty possession thereof has been excluded by the state's evidence beyond a reasonable doubt, you will find the defendant not guilty."

We think the court was not in error in refusing to give this additional instruction. We think the requested charge was more onerous than the law places on the state, in at least two particulars: First, in requiring the jury to acquit, unless every reasonable theory of the defendant had been excluded by the state's testimony; and, second, in requiring the jury to acquit, unless every reasonable theory of the defendant's possession of the casing in question other than his guilty possession...