Oxford v. State , 32 Tex. Crim. 272 ( 1893 )

Appellant was indicted in the District Court of Hopkins County for theft of property over the value of $20, and was convicted of theft, and his punishment assessed at two years in the penitentiary, from which he appeals.

1. Appellant complains, that the court erred in the first paragraph of his charge, in telling the jury that defendant was charged with the offense of burglary, when, in fact, he was on trial for theft. The record shows, that in the opening paragraph of his charge the court, in stating the nature of the offense, does tell the jury that the defendant stands charged with burglary, but in the second paragraph he states fully the law of theft, and applies the law to the facts of the case, and tells them, if they believe such facts exist, then defendant would be "guilty of theft, as charged." Again, in the fourth paragraph of the charge, the court tells the jury, that the question of burglary was not involved in the present prosecution. There was no exception taken to the charge, but the error was called to the attention of the court in the motion for a new trial. The jury, by their verdict, found the defendant guilty of theft, as charged. We think that it is evident that the mistake in the charge of the court was a mere inadvertence, which was harmless. If noticed at all, the mistake was too obvious to have misled a jury of ordinary intelligence, and certainly can not be made a ground of reversal. Ellis' case, 22 S.W. Rep., 678 (decided at this term).

2. The court did not err in failing to charge on alibi. It was not an issue in the case, and no charge was requested on such a defense, nor was there an exception to the failure to charge thereon. It is settled in this court, that such a defense is sufficiently embraced in the general charge that a defendant is presumed by law to be innocent until his guilt is established by competent evidence, beyond a reasonable doubt, and if such a charge is desired it must be requested. Davis v. The State, 14 Texas Cr. App., 645; Ninnon v. The State, 17 Texas Cr. App., 650; McAfee v. The State, 17 Texas Cr. App., 131; Ayres v. The State, 21 Texas Cr. App., 399; Hunnicutt v. The State, 18 Texas Cr. App., 500; Quintana v. The State, 29 Texas Cr. App., 401.

The judgment is affirmed.

Affirmed.

Judges all present and concurring.