63 S.W.2d 299 | Tex. Crim. App. | 1933
Lead Opinion
The offense is arson; the punishment, confinement in the penitentiary for two years.
The state objects to the consideration of appellant’s exceptions to the charge of the court; it being insisted that it is not shown that such exceptions were presented to the trial court before the charge was read to the jury. We quote from the caption of the exceptions as follows: “Now comes the defendant after having been presented the charge of the court and before the main charge was read to the jury and excepts to same upon
It is true that in the instrument bringing forward the exceptions it is not expressly stated over the signature of the trial court that such exceptions were allowed. However, the opinion is expressed that the action of the court in ordering the exceptions filed in response to appellant’s prayer that such exceptions be allowed and filed meets the demand of the statute. Certainly, the trial court would not have ordered the exceptions filed if he had not allowed them; and particularly is this true in view of the prayer that the exceptions be allowed and ordered filed.
We are unable to reach the conclusion that the failure to
One of the exceptions to the charge was that the facts adduced in evidence called for an instruction covering the law of circumstantial evidence. We think this exception was well taken. From the testimony of the state the following is taken: The injured party, Preston Smith, got up about 4 a. m. for the purpose of building a fire. Stepping out on his porch, he heard a noise in his barn. He said it was “something like gasoline or
Appellant’s witnesses testified that appelant was at home at the time the barn burned. In other words, their testimony, if believed, would have entirely exculpated appellant.
It is clear that appellant’s connection with the transaction was shown alone by circumstantial evidence. It is the announcement of the decisions that when the main fact is proved as a matter of inference from other facts in evidence, the case rests wholly, in a legal sense, upon circumstantial evidence. Branch’s Annotated Penal Code, section 2478; Ward v. State, 10 Texas App., 297.
The judgment is reversed and the cause remanded.
Reversed and remanded.
The foregoing opinion of the Commission of Appeals has been examined by the Judges of the Court of Criminal Appeals and approved by the Court.
Rehearing
ON MOTION FOR REHEARING.
The state makes an able and vigorous motion for rehearing based on the general proposition that the refusal of the court to give a charge on circumstantial evidence should not be held reversible error because of the juxtaposition of the accused to the crime committed. Our attention is called to section 2480, Branch’s Annotated P. C., and the au
There is no question but that the case was one on circumstantial evidence. We think it was correctly held in the original opinion that the exceptions to the failure of the court to charge, on circumstantial evidence were brought to the attention of the trial court before the main charge was given, and that same were approved by him. It is plainly the duty of the trial court to state in his charge to the jury the law applicable. In this, case he did not do so, notwithstanding his attention was called, to the failure to charge on circumstantial evidence by the exceptions to his charge. The judge who tried this case is usually a very careful trial officer. It occurs to us to be setting a dangerous precedent to hold in such case because the circumstances were well connected and afforded sufficient evidence to justify a conviction, the trial court might decline to submit the law of circumstantial evidence when plainly requested so to do, or when, an exception to the charge was presented calling attention to. the failure to so charge.
In other words, it seems to us better to lay down the rule that such failuie should be held cause for reversal than for us to embark upon the somewhat dangerous course of saying that in this case, that case or the other, we will uphold the court’s action, or rather affirm the case upon the theory of the strength of the circumstances. Some sets of circumstances might be stronger than others, and this court would necessarily be called, on to speculate more or less as to whether the failure to charge on circumstantial evidence could have resulted in injury to the accused. We are inclined to think the case correctly disposed of, and the state’s motion for rehearing will be overruled.
Overruled.