26 S. W. 209; Brazell v. State, 33 Tex. Crim. | defendant in a criminal case being tried beRep. 333, 26 S. W. 723.

in his conviction, and his punishment assessed at confinement in the penitentiary for a term of two years.

This is the second appeal (Beason v. State, 2 Tex. Ct. Rep. 921, 63 S. W. 633), and is a companion case to Murmutt v. State, now pending, involving substantially the same issues. The record contains eight bills of exception. The bills will be treated seriatim.

1. The facts show that the burglary committed and the theft which was consummated in its perpetration occurred some time between 12 o'clock noon of February 24th, and 12 o'clock of February 25, 1901, being Sunday and Monday, respectively. Appellant was arrested on Tuesday, February 26th, about 11 o'clock. When arrested he was in And yet in at least two cases (Vaughn v. State,, 17 Tex. App. 562, and Wright v. State, 18 Tex. App. 358) Brown's Case has been cited as an authority that in a criminal case, where all the evidence is circumstantial, a failure to charge on the law of that kind of evidence is a fatal error.

And in Thomas v. State, 13 Tex. App. 493, the court said, in reversing a judgment of conviction because the charge did not present the law of the case: "Appellant was convicted in this case upon evidence wholly circumstantial. A rule of practice, settled in this state by decisions which have been iterated and reiterated, is that, where the inculpatory evidence is purely circumstantial, the charge of the court must expound to the jury the nature and conclusiveness of that character of evidence, to warrant a conviction upon it. It is part of the law applicable to the case, and cannot be omit ted from the charge without causing error fatal to the conviction."

And in Lee v. State, 14 Tex. App. 266, the court said: "This is a case in which the evidence adduced on the trial to establish the guilt of the defendant was all circumstantial. There was no direct evidence proving that she committed the theft. Such being the character of the evidence, it was incumbent upon the trial judge to instruct the jury on the legal principles having relation to that kind of evi dence. In this case the court failed to charge the jury upon this subject, and therefore failed to charge the law applicable to the case, as has been well settled by the repeated decisions of the supreme court and of this court."

Upon an appeal from a conviction for the theft of a horse, where the trial court had neglected to charge upon the law of circumstantial evidence, the court, in reversing the judgment of conviction, said: "We are of the opinion that the evidence upon which the appellant was convicted is purely circumstantial; and that, therefore, the trial judge should have charged the jury the law applicable to such a case." Faulkner v. State, 15 Tex. App. 115.

On the trial of a prosecution for cattle stealing, where the evidence consisted mainly in facts which with more or less cogency tended to connect the accused with the killing of the animal in question, and some freshly butchered beef was found at their house, and there was a statement of one of the accused which tended

company with his codefendant, Murmutt. This arrest was upon a charge by information and complaint of theft of the corn from the house alleged to have been burglarized. On Thursday, February 28th, appellant duly entered his plea of guilty to the offense of theft in the county court of Clay county, and a judgment was on that day entered adjudging him guilty, assessing his punishment at a fine of $25 and ten days' imprisonment in the county jail. Subsequent to this judgment appellant was arrested, charged with burglarizing the said house, and was indicted by the grand jury of Clay county on March 19, 1901. Upon the trial of this case the state introduced the complaint and information and the judgment upon his plea of guilty in the theft case, to the introducto show his knowledge of the killing of the animal; but no witness saw the animal killed and no witness undertook to testify that the accused were ever in charge of the animal, or had possession of it, or were connected with the killing, otherwise than as stated, it was held that, under this state of the case, a charge of the law applicable to a case of circumstantial evidence was demanded. Lopez v. State (Tex. Crim. App.) 40 S. W. 595.

A charge that "theft may be established by circumstances-if the circumstances are sufficient to establish it beyond a reasonable doubtthat the defendant on trial, and no other person, took the same, if taken, from the possession of the owner," is tantamount to no charge on circumstantial evidence; and the refusal to make, in addition thereto, a charge which correctly states the law on the subject, is error for which a conviction will be reversed. Davis v. State (Tex. Crim. App.) 54 S. W. 583.

On a trial for hog stealing, where the defense was that the accused took up several head of hogs that had been getting into his corn field, and they all got out but two, which he concluded to kill and appropriate, his defense being that he took up the entire bunch of hogs for an innocent purpose, i. e., to keep them out of his field, and that he subsequently formed the intent to kill and appropriate them, which he did; and the trial court refused to charge on circumstantial evidence,-on appeal from a conviction, the court said that, while there was some testimony on the part of the defendant in reference to his taking the hogs, it was not of the character of taking relied upon by the state for a conviction, and so the state's case depended mainly on circumstantial evidence, and a charge on that subject should have been given. Veasly v. State (Tex. Crim. App.) 85 S. W. 274.

In each of the following cases it is decided that on a trial for larceny, where there is no direct evidence of the taking, or where all the evidence is circumstantial, an instruction on the law of circumstantial evidence is essential; and that a failure so to instruct the jury is error, for which a judgment of conviction will be reversed: Wyers v. State, 13 Tex. App. 57; Harris v. State, 13 Tex. App. 309; Montgomery v. State, 13 Tex. App. 669; Cook v. State, 14 Tex. App. 96; Garcia v. State, 15 Tex. App. 120; Howell v. State, 16 Tex. App. 93; Allen v. State, 16 Tex. App. 237; Kenneda v. State,

tion of which appellant objected as shown witness Paul Schucht to give his opinion as by his first bill of exceptions. This evi- to whether a man could step in at the south dence was admissible. The facts clearly window of the west room of the house alshow that the plea was entered for the iden- | leged to have been burglarized without raistical theft that is alleged in the indictment ing it, and his opinion as to whether or not in this case, it being alleged in this case as the door could have been opened by stock one of the elements of burglary. The objec- that were in the inclosure where the house tion that appellant was not admonished will was situated, his opinion as to the latter benot apply to a judicial confession in the ing based upon the fact that there was no nature of a plea of guilty in a misdemeanor, evidence of stock being near the entrance in but only applies to felonies. Johnson v. question. These two questions will be thorState, 39 Tex. Crim. Rep. 625, 48 S. W. 70; oughly discussed in the Murmutt Case (Tex. Berliner v. State, 6 Tex. App. 181. We are Crim. App.) 67 S. W. 508. now discussing only its admissibility. legal effect of said plea of guilty and its probative force will be discussed later.

The

2. Bills of exception Nos. 1 and 2 complain that the court erred in permitting the

16 Tex. App. 258; Cooper v. State, 16 Tex. App. 341; Schindler v. State, 17 Tex. App. 408; Mathews v. State, 17 Tex. App. 472; Vaughn v. State, 17 Tex. App. 562; Dupree v. State, 17 Tex. App. 591; Murphy v. State, 17 Tex. App. 645; Wright v. State, 18 Tex. App. 358; Ramirez v. State, 20 Tex. App. 133; Crowell v. State, 24 Tex. App. 404, 6 S. W. 318; Fuller v. State, 24 Tex. App. 596, 7 S. W. 330; Guajardo v. State, 24 Tex. App. 603, 7 S. W. 331; Willard v. State, 26 Tex. App. 126, 9 S. W. 358: Arismendis v. State, 41 Tex. Crim. Rep. 374, 54 S. W. 599, 41 Tex. Crim. Rep. 378, 54 S. W. 601; Scott v. State (Tex. App.) 12 S. W. 504 Deaton v. State (Tex. App.) 13 S. W. 1009; Bennett v. State (Tex. App.) 15 S. W. 405; Poston v. State (Tex. Crim. App.) 35 S. W. 656; Stewart v. State (Tex. Crim. App.) 77 S. W. 791.

See also Ray v. State, 13 Tex. App. 51; and Flores v. State, 13 Tex. App. 665, infra, VII.

3. Burglary.

Where, on a trial for burglary, the defendant requested the trial court to charge that the evidence against the defendant was purely circumstantial; and that his innocence must be presumed until the case against him is proved in all its material circumstances beyond a reasonable doubt; and that to find him guilty as charged the evidence must be so strong and cogent as to show his guilt to a moral certain. ty; and, unless it is established, the jury must find him not guilty, which request was refused, -this was held to be error, the record showing that the evidence against the accused was purely circumstantial. Gilmore v. State, 99 Ala. 154, 13 So. 536.

Upon a trial for burglary, where there was no contest at the trial as to the corpus delicti, and the inculpatory evidence tending to identify the accused as the guilty party was wholly circumstantial, and the jury, after remaining out from twelve to twenty hours, returned and requested the court for a further charge in reference to circumstantial testimony, in response to which the court said, among other things; "This case is not founded entirely upon circumstantial testimony. There is both positive and circumstantial testimony,"-the jury must have understood this to mean that there was some direct evidence to connect the accused with the offense charged. The charge was held

3. Bills Nos. 3, 4, 5, and 6 all involve the same subject-matter. A synopsis of the bills may be stated. In bill No. 4 an exception was taken to the following remarks of the district attorney: "The facts in this case to be erroneous, and the judgment of conviction reversed. Simmons v. State, 85 Ga. 224, 11 S. E. 555.

On a trial for burglary, when the evidence is entirely circumstantial, the jury should not be given a loose rein, but should have careful direction as to the quantum of proof necessary to justify a conviction. State v. Brady, 121 Iowa, 561, 91 N. W. 801.

Where the evidence on a trial for burglary is wholly circumstantial, the jury should be instructed as to the nature and conclusiveness of that character of testimony to warrant a conviction upon it. Struckman v. State, 7 Tex. App. 581.

And in Black v. State, 18 Tex. App. 124, a trial for burglary, the court, after holding that the charge was objectionable for another reason, said: "Another fatal objection to the sufficiency of the charge of the court is that it omits entirely to give the jury any instructions with regard to circumstantial evidence. The case was one wholly of circumstantial evidence, and the jury should have been properly instructed, with regard to the rules pertaining to that character of testimony."

Where, upon a trial for burglary, the accused (who was a boy, in regard to whom there was a question whether he would have sense enough to know right from wrong), after a witness had stated to him that he knew all about it, and he might as well own up, as he had been seen in the store, and tell all about it, went off, and in a short while returned with a pistol that had been taken from the store at the time, and delivered it to the witness; but the witness did not say that the accused confessed to him that he committed the burglary,-while his bringing the pistol was a very strong circumstance of guilt, yet, not being accompanied by a direct confession, it was only a circumstance; and, such being the character of the testimony, it the duty of the court to charge the law relative to that character of testimony; and, as this was not done, the judgment was reversed. Parker v. State, 20 Tex. App. 451.

was

On appeal from a conviction for burglary. it appeared that just prior to the arrest of the accused he made conflicting statements as to his right of possession of the property stolen, which he had undertaken to pawn on the day following the burglary. Such statements were made to the pawnbroker and the officer who arrested him. He introduced evidence to prove

are so clear that you can't have a reason- of stuff. If a defendant is not guilty, there able doubt as to the defendant's guilt; and, is no danger of his being convicted, because if you do not convict this defendant, we had there are too many courts for this case to go just as well tear down our courthouses, and through for an innocent man to be convicted stop paying our officers salaries to try to in the courts of Texas." The bill shows that enforce the law. The grand jury has done this argument was made in reply to the folall that they could do. I have prosecuted lowing argument of defendant's counsel, this case with all my might, and the officers which is quoted, as follows: "Gentlemen of of the court have done all that they could the jury, I am now about to close this case. do; and His Honor, the judge on the bench, is not going to help turn a guilty man loose. You see from evidence there have been sevHe is not that kind of a man that would eral trials in this cause, which is indicative let a criminal go free. It is true that, if the of the fact that there is something wrong jury return a verdict of not guilty, the case about this matter, and illustrates the adage will be ended; and, if this court thinks this that 'a thing is never settled until it is setdefendant is not guilty, the jury should not tled right.' Therefore, gentlemen of the think that he would sit there and let him jury, I hope you will settle this case right, be convicted. He is not made of that kind and end it by returning a verdict of not positive as to the passing, but is only circumstantial as to the making thereof, which is the crime with which the accused is charged, a failure to charge on circumstantial evidence is fatal, and a judgment of conviction will be reversed. Hanks v. State (Tex. Crim. App.) 56 S. W. 922.

an alibi, and also in support of one of his statements.-that he obtained the property from another party. It was urged for reversal that the trial court had failed to charge the law applicable to a case dependent upon circumstantial evidence, and the court held that the charge should have been given. Robertson v. State (Tex. Crim. App.) 26 S. W. 728.

In Gonzales v. State, 12 Tex. App. 657, a trial for burglary, the court said: "We find but a single error in the proceedings of which defendant can justly complain. The evidence against him was entirely circumstantial. It is well settled that, when the inculpatory evidence in a case is purely circumstantial, the charge of the court must expound to the jury the nature and conclusiveness of that character of testimony, to warrant a conviction upon it. It is a part of the law applicable to the case, and cannot be omitted from the charge without causing error fatal to the conviction. In

this case the court wholly failed to instruct the jury in regard to circumstantial evidence, which error was properly complained of by defendant in a bill of exceptions, and also in his motion for a new trial."

4. Other crimes.

In Daniels v. State (Tex. App.) 14 S. W. 395, the court said: "In the statement of facts we find no direct evidence that defendant, by a promise to marry the female, seduced and had carnal knowledge of her. Penal Code, art. 814.

That he promised to marry her is proved only by the circumstance that he asked her mother's permission to do so. He never told anyone that he promised to marry her; nor did any witness testify that he made such a promise. No one testified that he ever had carnal knowledge of her, and, if he did have such carnal knowledge, it does not appear, at least by direct evidence, whether it was before or after he had made such promise. We regard the case as one of circumstantial evidence only, and to our minds the circumstances are of a weak and inconclusive character. Such being the character of the evidence, it was material and fundamental error to omit to instruct the jury in the charge as to the rules of law applicable to such evidence."

Where one was indicted for making a false instrument, but there was no charge of uttering the same, and the evidence is direct and

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b. Possession of stolen property.

The finding of property that has been stolen in the possession of the accused, which possession he does not satisfactorily excuse, explain or account for, or does so untruthfully, has been held to be prima facie evidence that he committed the larceny; but the single possession of such property, shown in the accused, is only a circumstance tending to prove his guilt, and which, without any positive proof as to the taking, renders the case one wholly depending upon circumstantial evidence, and a failure of the court to charge upon the subject is error; and the cases in this subdivision are those which, under varying circumstances, point out this rule.

In Gablick v. People, 40 Mich. 292, the court, in holding that the accused, on a trial for larceny, was entitled to an instruction that the fact of possession of stolen property, standing alone and unconnected with any other circumstance, afforded but slight presumption of guilt, for the real criminal may have artfully placed the property in the possession, or on the premises, of an innocent person, said that, while it was perfectly true that the jury must judge of the proper weight of the evidence, yet, when evidence was laid before them which only indirectly tended to raise an inference of guilt, and the importance of which must depend altogether upon circumstances, it was the right of the accused to have the jury instructed how those circumstances bore upon the presumption of guilt.

On a trial for theft, the court said that the case against the defendant-that is, his complicity with the taking of the stolen animalwas one wholly of a circumstantial character, as no witness testified to having seen him take the animal, and his first connection with it, as disclosed, was in his pasture after it had been taken from its accustomed range by someone; that he was the party who took it, therefore, was a fact derivable alone from other circumstances; and it was plainly the duty of the