Underwood v. State

• Decision Date: 21 October 1908
• Parties: UNDERWOOD v. STATE.
• Court: Texas Court of Criminal Appeals

117 S.W. 809

UNDERWOOD v. STATE.

Court of Criminal Appeals of Texas.

October 21, 1908.

Rehearing Denied March 20, 1909.

Appeal from District Court, Wood County; R. W. Simpson, Judge.

Bedford Underwood was convicted of theft, and appeals. Affirmed.

M. D. Carlock, for appellant. F. J. McCord, Asst. Atty. Gen., for the State.

RAMSEY, J.

Appellant was indicted in the district court of Wood county, charged with theft of a certain watch from one Thad Gray. On his trial he was convicted of the offense charged, and his punishment assessed at confinement in the penitentiary for two years.

The facts are briefly, as claimed by the state, that in March, 1907, appellant and Gray came to Mineola; that along about midnight of the same night they went down to the depot—Gray, at least, intending to take passage on the train going west about 3 o'clock that night. Gray testifies that he went to sleep with the watch in his breast pocket and the chain fastened to his overalls; that when he woke up, about 3:30 o'clock, his watch was gone; that it had been taken out of his pocket and unsnapped from the chain; that at the time several parties were sitting in the waiting room of the depot, and he immediately left the waiting room at the depot and started to town to look for an officer, when appellant overtook him and asked him where he was going; that at first he told appellant that he was just going to knock around some, when appellant again asked him where he was going, and he said to appellant that some one had stolen his (Gray's) watch, and he was going to hunt an officer and get him to search the crowd in the depot; that at this time appellant asked him if he could have an officer to search the people, and wanted to know whether the officer had a right to do so; that he (appellant) went a little piece further and stopped, when Gray asked him to come and go with him to hunt an officer. Appellant replied that he could not go; that he had a chill, and wanted to go back to the depot, where there was a fire, and warm; that appellant returned to the depot, and Gray, in a short while, returned with an officer, and appellant pointed out two men whom he said he saw sitting by him (Gray) while he was asleep, and further said, if he wanted to, the officer might search him also, as he had sat beside him while he was in the depot asleep; that they searched some other persons, but did not search appellant at the time. Gray's watch was some time after this found in the possession of J. T. Roberson, who testified that he received the watch from one Brandon some time in the summer of 1907. Brandon testified that he bought the watch from appellant in the last of March or first of April of the same year. Without going into details, we think the testimony of the state abundantly identifies the watch, which Brandon bought from appellant and afterwards sold to Roberson, as the watch which Gray lost. Appellant denies stealing Gray's watch, and claims that he had swapped a pistol which he owned to a black negro, wearing a blue ducking suit of overalls and riding a bay horse, for a watch which he claimed was the watch he had sold to Brandon, and introduced his father and mother to support this contention, and also testified himself on the trial to the same facts. The testimony of the state showed a number of untrue and contradictory statements made by appellant, as well as an offer on his part, if not prosecuted, to pay for the watch. This is a very brief summary of the evidence, and is perhaps sufficient to illustrate the questions that arise in the case.

There were a number of special instructions requested by appellant, which we think need not be noticed. The appellant assigns as error the refusal of the court to give the following special charge, requested by him: "Among other defenses set up by the defendant is what is known in legal phraseology as an `alibi'; that is, that if the offense of theft from the person, as alleged, was committed, the defendant was at the time of such offense at another and different place from that at which such offense was committed, and therefore was not and could not have been the person who committed the offense, if such offense was committed. Now, if the evidence raises in your mind a reasonable doubt as to the presence of the defendant at the place when the offense, if any, was committed, and if from the evidence you retain a reasonable doubt that he might not have been elsewhere, he is entitled to the benefit of such doubt, and you will acquit him." The testimony found in the record, and the only testimony as to the whereabouts of appellant, except the statements made by him to Gray at the time the watch was taken, is that of himself. Touching this matter he testifies as follows: "The witness Gray was on the train with me. I ate supper at the same restaurant, but was not with him. During the night I went to the depot and met the witness Gray going away from the depot. I had been up on the show grounds and taking in the various shows, and when I met the witness Gray he told me that he went to sleep in the depot and somebody had robbed him of his watch. I told him to find a policeman, that he could find one up on the show grounds, and that I would go on up to the depot and stay there until he came back; told him that I was cold and would go to the fire. I thought he could find an officer without my assistance." In his general charge the court instructed the jury as to the constituents of the theft herein charged, and that if they believed from the evidence beyond a reasonable doubt that appellant fraudulently and privately stole said watch from Gray without his consent, and with the fraudulent intent to appropriate same to his use and benefit, th...