Smith v. State , 138 Tex. Crim. 219 ( 1939 )

In the motion for rehearing appellant insists that this court has erred in overruling his Bill of Exception No. 12, and particularly of the fact stated in the opinion that "we find no evidence which raised such an issue." Appellant has treated at length evidence showing the connection of James Farmer and Freeman Sparks, each of whom was arrested on the charge of the theft of the car with appellant, and cites this as evidence sustaining his contention that an affirmative charge should have been given. We cannot agree with this contention. They were principals, and evidence of their connection is not sufficient as a defensive matter to entitle this appellant to an affirmative charge on his defense that some one else and not himself committed the crime. The evidence in each instance connecting the other parties with the crime also connects the appellant with it. It is not his defense at all. His defense was that of an alibi. Upon the evidence on that subject the court gave a charge properly covering it and which we think submitted the appellant's defense. Appellant offered no testimony that the car was stolen by some one else but separately relied upon his defense of alibi. The State's testimony did show the connection of other parties as well as the appellant, but this was properly embraced in the court's charge and there is not in the record any defensive matter requiring an affirmative charge.

La Fell v. State, 153 S.W. 884, treats the subject as follows: "It is also a rule of law that, where the court charges a conviction on the theory that the accused was a principal, the converse of the proposition should also be given; that is, that if another did in fact commit the offense, and defendant did not aid and encourage him in the commission and was not present, he would not be a principal."

In paragraph four of the charge the jury is instructed that if they believe from the evidence, beyond a reasonable doubt, that the defendant, Joe Bob Smith, acting either alone or together with others as principals, under the law of principals as previously defined in the charge, committed the offense alleged, that they should find him guilty and assess the punishment therefor in accordance with their finding; that unless they did so find, or if they had a reasonable doubt thereof, they should acquit the defendant.

We have carefully gone into all the evidence in the case again and believe that the foregoing instruction complies with the rule laid down in La Fell v. State, as well as the other authorities cited in the appellant's motion for rehearing.

Further complaint is made of the action of this court in overruling Bill of Exception No. 14, in which it is insisted that the testimony of the witness Abrams that the appellant made certain statements to him about eleven o'clock at night showing an intention to go home and that he was not feeling well. This witness testified to facts which, if the jury had believed, would have resulted in their finding in appellant's favor on his alibi defense. We cannot see that the statements would have added anything to that witness' testimony or that it would have been in any way helpful to the appellant. We have analyzed this testimony fully and think the original opinion correctly disposed of the bill.

It is true, as insisted, that the evidence against the appellant was circumstantial. His alibi seemed to be a reasonable one, and so far as the record before us is concerned, is forceful. Yet it is all a matter for the jury. There was a proper charge on circumstantial evidence and a proper charge on the defense of alibi. The jury found against him. Appellant thinks that his statement at that time of night that he was not feeling well was a circumstance which the jury was bound to consider in support of his contention and theory that he did not leave home again after arriving there between eleven o'clock and midnight. As we view it, from the distance given and the time at which the automobile was taken, if the jury had found that appellant went to his home at eleven o'clock, he could not possibly have been at the place where the automobile was stolen at the time it was taken. There is nothing to raise a question about his having left home after he once went there. There is no materiality in the evidence under the circumstances of this case, even if it should be held to be admissible. The jury must have found that he did not go home at the time stated.

The motion for rehearing is overruled.