41 S.W. 615 | Tex. Crim. App. | 1897
Appellant was convicted of the theft of hogs, and his punishment assessed at two years in the penitentiary; hence this appeal.
The only objections urged to the conviction below involve the charges given by the court. When appellant's right to said property was first challenged, he stated "that he had bought said hogs from a negro. He described the negro as a heavy-set man, wearing a white hat flopped down, and riding a bay pony with a roached mane. He said he did not know the man, but that John Collins was present, and perhaps knew him, and he might tell his name."
The court charged the jury on recent possession, in connection with defendant's explanation, said charge being as follows: "If you believe from the evidence that the hogs described in the indictment had been stolen from Sandy Diggs, and that recently thereafter the defendant was found in possession of them, and when his possession was first questioned he made an explanation of how he came by them, and you believe that such explanation is reasonable and probably true, and accounted for defendant's possession in a manner consistent with his innocence, then you will consider such explanation as true, and acquit the defendant. If, on the contrary, such explanation was unreasonable, and did not account for defendant's possession in a manner consistent with his innocence, or if you believe that the same accounted for defendant's possession in a manner consistent with his innocence, but the State has shown the falsity thereof, then you will take the possession of defendant, together with his explanation, in connection with all the other facts and circumstances, if any, in evidence; and, if you believe the defendant guilty beyond a reasonable doubt, you will so find; otherwise you will acquit the defendant."
Appellant insists that such charge is erroneous, among other things, as being upon the weight of the evidence, and because said charge is contradictory and calculated to mislead the jury; and he furthermore insists that said charge is erroneous because it requires the jury to believe, not only that the explanation given was reasonable and probably true, but that it added the further burden on the defendant to show that such explanation was consistent with his innocence; and with him agrees, also, the Assistant Attorney-General. The charge given on this trial was the same formulated and commended by this court on a former appeal of this case. Wheeler v. State,
It is also complained that the court erred in eliminating from the special instruction requested by appellant a part thereof. It seems from the testimony that the appellant took no bill of sale of the hogs on his alleged purchase. On this phase of the case the following instruction was requested by him, and given in part by the court, to wit: "You are instructed that the law requires of a butcher that he take a bill of sale to cattle bought and slaughtered by him as such butcher, but (such is not the case as regards hogs purchased. The title and ownership of hogs is transferred by delivery, and there is no necessity for, and) no law exists requiring a purchaser of hogs to take a bill of sale therefor, to show his good faith in the possession." From this charge was eliminated what is contained in the parenthesis above, so that the charge as given by the court read as follows: "You are instructed that the law requires of a butcher that he take a bill of sale to cattle bought and slaughtered by him as such butcher, but no law exists requiring a purchaser of hogs to take a bill of sale therefor, to show his good faith in the possession." If there was any necessity to give the charge at all, that given by the court was sufficient. It comprises all that was essential in the charge as originally requested.
We have examined the record carefully, and in our opinion the testimony amply supports the verdict. There being no errors, the judgment is affirmed.
Affirmed.