Lead Opinion
This appeal is prosecuted from a conviction of theft of gloves.
1. Continuance was applied for by appellant to obtain the testimony of an absent witness, by whom he expected to prove, ‘ ‘ that at the time he is charged with committing this offense he was not in a situation to com *443 mit said offense.” The application does not state a single fact expected to be testified by the witnеss. Inferences, conclusions, general statements, or indefinite allegations will not suffice to take the place of evidence. The facts must be stated. Willsоn’s Crim. Proc., sec. 2165.
2. The defendant offered to prove, that after his arrest, and while being conveyed from the place of arrest by the officer in whose chаrge he was, he stated to said officer that Horace Williamson had given him the glоves. The object or purpose of seeking this evidence is not stated in the bill оf exceptions. May v. The State, 25 Texas Cr. App., 115, and cited authorities.
The account given by him explanatory of his possession had been previously made, and was admitted in evidence on the trial. The testimony offered ivas not made when hе was first called upon to explain his possession. There was no error in refusing to permit the statement to go to the jury, as presented by the bill of exceptions.
3. The charges asked and given correctly and sufficiently, we think, instructed the jury in regard to the law of the case, and there was no error in refusing additional requested instruсtions.
4. It is urged that the testimony is not sufficient to support the conviction. By the prosecution it was shown, that the gloves were used by the owner on the night they were taken; thаt he wore them, in driving, on that occasion; that upon reaching church, he pulled them from his hands and placed them in a box under his buggy seat; that on returning to his buggy after services, he found the gloves had been taken; and in a few days thereafter the defеndant sold the gloves to one Corbet, claiming to have purchased them from one Brewer, a merchant, which statement was shown to be false.
Defendant’s fathеr testified, in his behalf, that when he was arrested defendant denied his guilt, and stated the glovеs had been given him by Horace Williamson.
Horace Williamson testified, that while en rоute to church, on the occasion in question, accompanied by his mother and defendant, he found the gloves and gave them to defendant. Mrs. Williamson testified to the same facts. Defendant also introduced evidence showing that while at thе church he sat with Mrs. Williamson, and was not away from her during the services had there on thаt occasion. We would not be authorized to reverse the judgment on the evidеnce found in the record. If the State’s evidence is true, defendant is guilty. If the defendаnt’s testimony is correct, he is not guilty. The jury, constituted the judges of questions of fact in cаses of this character, have found adversely to defendant. We have found no error requiring a reversal of the judgment, and it is affirmed.
Affirmed.
Addendum
*444 ON MOTION FOR REHEARING.
On a former day of this term the judgment in this сase for theft was affirmed. In his motion for rehearing, appellant insists that the affirmance was erroneous, for the reason that the court below refused to give the jury his requested instruction with reference to the law of circumstantial evidenсe. The charge was properly requested, as it relates to form and substance, and being refused, this action of the court was duly excepted to as required in misdemeanor cases in this State.
After a more careful review of the cаse, we are of opinion that the point is well taken, and the court below еrred in refusing to give the requested instruction.
Upon the former review of the case we were of the opinion that it came within the rule laid down in the Montgomery cаse, 20 Southwestern Reporter, 926, but after”a more thorough investigation we think the facts in regard to the taking do not bring this case within that rule.
The rehearing is granted, and for the reason above given, the affirmance is set aside, and the judgment is reversed and cause remanded.
Reversed and remanded.
Judges all present and concurring.