EUGENE JACKSON FOSTER v. STATE
No. 31,737
Texas Court of Criminal Appeals
April 20, 1960
Motion for Rehearing Overruled June 8, 1960; Second Motion for Rehearing Overruled October 12, 1960
ON APPELLANT‘S MOTION FOR REHEARING
DAVIDSON, Judge
Appellant insists that, inasmuch as the trial сourt permitted appellant‘s counsel to orally move to postpone the trial of the case in order that he might have the benefit of the testimony of the doctor who examined the prosecuting witness, we should consider the question presented as though a sworn motion in writing had been presented.
The question thus presented is one involving the exercise of judicial discretion on the part of the trial court.
In view of the fact that we do not have before us the facts to whiсh the doctor would have testified we are unable to say that the trial court was not authorized to overrule the appellant‘s request.
We have again examined the record, and remain convinced that a correct conсlusion was reached originally.
Appellant‘s motion for rehearing is overruled.
Henry Wade, Criminal District Attorney, Jerome C. Chamberlain, Jr., Robert E. Lyle, Phil Burleson, Assistants District Attoreny, Dallas, and Leon Douglas, State‘s Attorney, Austin, for the state.
DICE, Judge
The conviction is for felony theft with two prior convictions for felonies lеss than capital alleged for enhancement; the punishment, life imprisonment under Art. 63, V.A.C.P.
The state‘s testimony shows that the injured pаrty, Charles B. Sydow, was the owner of a fourteen foot Miami Blue Star aluminum boat and a two-wheel trailer of the aggregatе value of $250 which he kept in a fenced enclosure behind his place of business. On January 9, 1959, Sydow discovered that the gatе had been broken and that the boat and trailer were missing. Sydow testified that he had given no one permission to take the boat and trailer and that he next saw the boat and trailer approximately three months later at the city pound.
Gene T. Cox, called as a witness by the state, testified that he was acquainted with the appellant and that on the night of either Jаnuary 7, 8, or 9th, 1959, the appellant and another man whom he did not know came to his home with a boat and trailer which he purchased from appellant for the sum of $150. The witness stated that in the transaction he understood the boat and trailer belоnged to the appellant and that several months later, after he had partially repainted the trailer, he turned thе boat and trailer over to the police department. Cox further stated that appellant thereafter came by his place of business and talked to him about the boat and trailer and in the conversation stated that someone had squealed on him and asked the witness to help him but did not specify how he could.
Proof was made by the state of the two prior alleged convictions and appellant, while testifying as a witness, admitted that the allegations in the indictmеnt with reference to the two prior convictions were true.
Testifying in his own behalf, appellant denied stealing the boat and trailer in question and going to Cox‘s home to sell the same. Morris Label, who was under conviction and sentence of lifе imprisonment as an habitual criminal, upon being called as a witness by the appellant, testified that it was he and not the аppellant who stole the boat and trailer and sold them to the witness Cox. Label testified that appellant was not with him еither when the theft was committed or the property was sold.
The court submitted the issue of appellant‘s guilt to the jury upon а charge on circumstantial evidence.
Appellant made no objection to the charge and presented no requested charges to the court.
In his brief appellant complains of certain instructions given in the charge аnd to the court‘s failure to charge the jury with reference to the law relating to accomplice testimony. Complaint is also made to the court‘s failure to charge on appellant‘s defense that the witness Label and not the аppellant stole the boat and trailer.
In the absence of an objection or requested charge apрellant is in no position to complain of the charge as given by the court. May v. State, 160 Tex. Cr. R. 582, 272 S.W. 2d 886. We find no fundamental error in the court‘s charge. In the absence of an objection or requested charge by appellant, the court‘s failure to charge the jury on the law does not present reversible error. Bacon v. State, 133 Tex. Cr. R. 512, 112 S.W. 2d 480; Woods v. State, 152 Tex. Cr. R. 525, 215 S.W. 2d 334.
We find the evidence sufficient to sustain the conviction and overrule appellant‘s contention that the state‘s witness, Cox, was shown to be an accomplice witness as a matter of law. The evi-
The judgment is affirmed.
Opinion approved by the Court.
ON APPELLANT‘S MOTION FOR REHEARING
WOODLEY, Judge
It is contented for the first time on motion for rehearing that the conviction should be rеversed because the record on appeal does not show a compliance with Art. 494 V.A.C.C.P. (as amended in 1959) which provides that counsel appointed by the court pursuant to the provisions of said article “shall have ten (10) days to рrepare for trial, unless such time be waived in writing by said attorneys and the accused.”
Certified copies (photostats) bearing the signatures of appellant and Ross Hardin, his counsel, have been furnished us by both counsel for appellant and counsel for the state which recite that the court appointed Ross Hardin as counsel to represent the defеndant “and the said defendant and counsel hereby waive the 10 days in which to prepare for trial, and agree that said cause may be tried on this date, to wit August 24, 1959, or any day hereafter.”
This waiver appears to be a compliance with the statute.
Appellant‘s motion for rehearing is overruled.