hearing of the jury: 'I agree with you in, flagrant disregard of the rights of the deyour contention; but you know the court has ruled different in this case, and I can't say whether I will charge on circumstantial evidence.'" As a rule of practice it has been uniformly held that an improper argument -which, for the purpose of this case, must be conceded-is not ground for reversal, unless appellant not only objected to the same at the time, but followed up this objection by requesting the court by a charge in writing to instruct the jury to disregard the same; and that this charge, so requested, was refused by the court. White's Anno. Códe Crim. Proc. § 766, and authorities cited. The exception to this rule is where the argument is so obviously of a character that is injurious in its nature, and such a of the time that the stolen cow was missed, searched for, and the beef and hide found at defendant's house, which was alleged to be that of the stolen animal, still the witness did not see and identify the hide as that of the animal he had seen defendant drive up and have turned into his field, but the identity of the animal was wholly an inference to be deduced from circumstances; and this rendered a charge on circumstantial evidence essential. Smith v. State (Tex. App.) 12 S. W. 869.

In Navarrow v. State (Tex. App.) 17 S. W. 545, where the defendant had been convicted of stealing a horse, the alleged owner testified that the horse was taken on the night of one day, or the morning of the next, and two other witnesses testified that on one or the other of two days, at night, the accused brought the horse to their house, and offered to sell one of them the horse on his paying him a small sum and agreeing to pay the balance the next day, when the accused should deliver the horse. He delivered the horse as agreed, and received the deferred payment, and later gave them a bill of sale. When accused offered to sell the horse the purchasers questioned his title. assured them that the title was in himself; that the horse was his, and that he had purchased it. It was held that, under this state of the case, the court should have charged the Jury upon the law of circumstantial evidence, which was not done, and the failure so to charge constituted such error as required a reversal.

He

On a trial for hog stealing it appeared that the hogs were taken perhaps half a mile or more from where they were found, and the accused was present with others who stole them, and, when discovered in possession of the hogs, ran off with the other persons. The court said that, if the accused ran because of his guilt, then his flight was a cogent fact against him; but, conceding the flight, it was not positive evidence of the taking, as it was as consistent with receiving or guilty connection with the transaction after the theft as with the original taking; and the trial court committed reversible error, under the facts of the case, in failing to explain to the jury the rules governing cases depending purely upon circumstantial evidence. Montgomery v. State (Tex. Crim. App.) 20 S. W. 926.

Where, on a trial for stealing a horse in the Indian nation, and bringing it into a county

fendant, that it will be assumed a written charge requested and granted will not cure the error. However, in this case, the crucial test is not the impropriety of the district attorney in his argument, but rather the injury inflicted on appellant by the conduct of the learned judge. To better understand this, it will be necessary to state the history of this case. This was its second trial, the former trial being reversed by this court upon the sole ground that the trial court had failed to give a charge upon circumstantial evidence. The facts on this appeal and upon the former appeal are identical. If it was a case of circumstantial evidence on the first trial, it was likewise a case of circumstantial evidence on the where the trial was had, it appeared that the accused stated that he had brought the horse from the nation, it was held that this did not relieve it from being a case resting alone upon circumstantial evidence, as the main fact in the case was the theft of the horse in the nation, and not the bringing of it into the state, and there was no positive proof that the accused stole the horse, and the court should have given in charge to the jury the law applicable to a case of circumstantial evidence, which it failed to do; and the conviction was reversed. Green v. State (Tex. Crim. App.) 34 S. W. 283.

Where, on a trial for cattle theft, there is Do positive evidence of any eyewitness to the original taking, and possession by the accused alone is relied upon to prove inferentially the original fraudulent taking, the trial court should charge on the law of circumstantial evidence, and a failure to do so will reverse the conviction. Wallace v. State (Tex. Crim. App.) 66 S. W. 1102.

Where on a trial for theft the only evidence against the accused was the possession of the property shown to have been recently stolen, this, by the unbroken decisions, is a case of circumstantial evidence, and requires the court to charge the law applicable thereto. Cortez v. State (Tex. Crim. App.) 74 S. W. 907.

See also Doucette v. State (Tex. Crim. App.) 45 S. W. 800, infra, III. b, 2, and Alderman v. State (Tex. Crim. App.) 23 S. W. 685, infra, IX.

On trial for horse theft the defendant admitted the branding of the stolen animal, and it was proved that the animal was in his possession, and these two facts constituted a taking; and there is no error in failing to charge upon the law of circumstantial evidence. Gentry v. State, 41 Tex. Crim. Rep. 497, 56 S. W. 68.

See also Alderman v. State (Tex. Crim. App.) 23 S. W. 685, infra, IX.

second trial. The reluctance of the trial judge on the second trial to treat it as a case of circumstantial evidence justifies this court in making a critical review of that proposition, because, if this court was in error in holding in the first instance that it was a case of circumstantial evidence, the remarks made by the trial judge on this trial might be rendered harmless. The court will assume, in approaching the discussion of this proposition, that the learned trial judge understood that if the case was one of circumstantial evidence, it was his duty to give the jury in charge the law upon the same. This rule is so universal in its acceptation, and has been so repeatedly announced by not only this court but the courts of other jurisdictions, that it would

be a useless consumption of time and space to enter into its discussion. It is equally as well settled that a case is not to be treated as a case of circumstantial evidence requiring a charge upon the same where some of the material issues, incriminating and inculpatory, rest solely upon that kind of evidence. The distinction between circumstantial evidence and direct evidence is that in the first instance the facts apply directly to the factum probandum, while circumstantial evidence is proof of a minor fact, which, by indirection, logically and rationally demonstrates the factum probandum. This is illustrated by proof of recent possession of stolen property. In such a case, resting alone upon such inculpatory evidence, the eye of no witness saw the thief culpatory fact is direct; and the following, 895, on a trial for murder it would appear cases are those wherein the proof was the posi- that the jury had been instructed on behalf of tive testimony of witnesses.

1. Homicide.

Where the court, in a criminal case, was requested to instruct the jury that, although the facts and circumstances might be strong enough to prove beyond a reasonable doubt every ma terial link in the chain of evidence, save one, necessary to show the guilt of the defendant, yet, if the jury had a reasonable doubt, issuing out of the evidence, as to the truth of this one link, they should acquit the defendant, the court, in reviewing a conviction for murder, said that, apart from the obscurity involved in the truth charged as to what was meant by this reference as to doubting the truth in a chain of evidence, the metaphor was inapt as applied to the case, where the evidence connecting the defendant with the killing did not consist of a chain of circumstances, but was direct, positive, and undisputed. Wilson v. State, 128 Ala. 17, 29 So. 569.

In Purvis v. State, 71 Miss. 706, 14 So. 268, the court said that some of the instructions given for the defendant might well have been refused, for the proof of his guilt was not dependent upon circumstantial evidence, but rested upon the direct and positive testimony of an eyewitness; that all those instructions, therefore, which were predicated on the weight to be given to circumstantial evidence might well have been refused, and that those of the same character which were denied were properly denied.

The report only shows that the conviction was for a capital offense, but the particular offense is not stated.

In State v. Robinson, 117 Mo. 649, 23 S. W. 1066, a conviction of murder, where it was claimed, upon the authority of State v. Moxley, 102 Mo. 374, 14 S. W. 969, 15 S. W, 556, supra, II., a, 1, that an instruction such as was held to be necessary in that case, should have been given, the court said that such an instruction was inapplicable to the facts in this case, because here, although there was some circumstantial evidence which strongly corroborated the confession of the accused, yet the whole was positive testimony, and a charge as to the circumstantial evidence was unnecessary.

In State v. Fairlamb, 121 Mo. 137, 25 S. W.

the state on circumstantial evidence, which instruction the court held should not have been given, as the killing was shown by direct and positive evidence. and did not depend for its proof on circumstances, and that it was only where the crime is sought to be shown by facts and circumstances that such an instruction should be given; but added that the case should not be reversed upon that ground alone. See Rountree v. State (Tex. Crim. App.) 58 S. W. 106, infra, III. a, 5.

In Taylor v. State, 9 Tex. App. 100, the court said that it was not clear that a charge by the court upon the law of circumstantial evidence was essential, as the presence of the accused at the scene of the homicide was established by competent evidence of a positive nature.

Where, upon a trial for murder, the court had properly admitted the testimony of the deceased, in writing, taken at the examining trial of the accused upon a charge of assault with intent to murder deceased, which rendered the case not one of circumstantial evidence; and the court was not required to charge the law applicable to that character of testimony; the charge, having failed to do so, was not, therefore, obnoxious to the objection urged in that regard. Hart v. State, 15 Tex. App. 202, 49 Am. Rep. 188.

In Sharpe v. State, 17 Tex. App. 486, the court said: "It is further objected to the charge that it does not instruct the jury as to the law of circumstantial evidence. This objection is clearly not tenable, because the evidence establishing defendant's guilt is direct and positive, and not of a circumstantial character. The law of circumstantial evidence should not be charged, except in cases where the state relies solely upon that character of evidence to obtain a conviction."

It is not required, in order to dispense with a charge on circumstantial evidence, that the defendant's guilt should be established by direct evidence. It is only when the inculpatory evidence is wholly circumstantial, and where the defendant's guilt is dependent wholly upon that character of evidence, that an instruction as to circumstantial evidence is required. And, upon a trial for murder, that the defendant killed the deceased is an inculpatory fact, and when this fact is proved by direct evidence the

in the act of taking the property stolen. | cumstantial evidence. The construction of But the witness may testify directly to the the word "solely" or "alone" has been refact of seeing the thief, recently after the peatedly construed in this state by every crime, in possession of the stolen property, court of last resort, and the decisions of and, when his possession was challenged, this state have been followed with approval either declined to explain, or gave an ex- by the courts of other jurisdictions. The planation which was false, from which cir- rule is this: That it is only necessary cumstances of the possession, directly sworn where the main fact, or, as one case puts to, and circumstances of a failure to ex- it, "where the gravamen of the offense," or, plain or a false explanation, the factum of as another case has it, "where the act of the taking is inferred or deduced by the the crime," rests solely upon circumstantial process of reasoning. But what constitutes evidence, that then it becomes a case known circumstantial evidence, and what consti- as a case of circumstantial evidence requirtutes a case depending solely upon circum- ing a charge upon that. In the Buntain stantial evidence, are two different ques- Case, 15 Tex. App. 515, Judge White used tions. It has been held that a charge on cir- the following language: "If a court were cumstantial evidence is necessary only when required to charge the law of circumstantial the case rests "solely" and "alone" upon cir- evidence in all cases where reliance was had necessary; as a charge on this subject is only necessary where the case is one wholly of that character of evidence. Yancy v. State (Tex. Crim. App.) 87 S. W. 693.

necessity of a charge upon circumstantial evidence is dispensed with. Self v. State, 28 Tex. App. 398, 13 S. W. 602.

Where the accused and another were indicted for murder of a person who had been shot by such other person, and the accused had demanded and been granted a separate trial, and on such trial the theory of the state was that the defendant and the other person indicted with him and who had fired the shot which killed the person for whose murder they were charged, acted together in the commission of the homicide in pursuance of a previously formed and common design, the evidence of which was circumstantial, it was held that a charge as to circumstantial evidence was not necessary, the killing of the deceased being proved by direct and positive evidence. Weathersby v. State, 29 Tex. App. 278, 15 S. W. 823.

But see Jones v. State, 34 Tex. Crim. Rep. 490, 30 S. W. 1059, 31 S. W. 664, infra, X. Where, on a trial for murder, the facts relating to the homicide are testified to by an eyewitness, there is no necessity for the court to charge on circumstantial evidence. Campbell v. State (Tex. Crim. App.) 38 S. W. 171.

Where, on a trial for murder, the evidence was direct and positive from an eyewitness that the defendant shot and killed the person for whose murder he was being tried in the perpetration of robbery, the court did not err in failing to charge on the law of circumstantial evidence. Jones v. State, 31 Tex. Crim. Rep. 177, 20 S. W. 354.

Where, on a trial for murder, the presence of the accused at the place of the homicide, and that he fired the fatal shot, were established by the positive testimony of eyewitnesses, an omission of the court to charge on circumstantial evidence was not error. Russell v. State, 38 Tex. Crim. Rep. 590, 44 S. W. 159.

Where, on a trial for murder, several eyewitnesses testified to the killing, the court did not err in failing to charge on the law of circumstantial evidence. Jones v. State (Tex. Crim. App.) 77 S. W. 802.

Where, on a trial for murder, it appeared that there was proof of the confession of the accused to a witness, and the evidence of another witness testifying to the fact of the killing. he being an eyewitness, and the testimony of the defendant himself, in which he testified positively that he did the killing, a charge upon circumstantial evidence was un

'

Where the main proof of the prosecution in a criminal case was the direct testimony of eyewitnesses, who testified that they saw the accused shoot the deceased, a request to instruct the jury as to the effect of circumstantial evidence. Steadham V. State, 49 Tex. case of the prosecution rested upon circumstantial evidence, which was not the fact, should be denied. People v. Lem Deo, 132 Cal. 199, 64 Pac. 205.

The court said further, in the same connection, that the substance of the instruction was given in other parts of the charge.

Where, on a trial for homicide, the killing of the person for whose murder the accused is on trial is shown by positive testimony, a failure of the court to charge on circumstantial evidence is not error. Augustine v. State, 41 Tex. Crim. Rep. 59, 96 Am. St. Rep. 765, 52 S. W. 77.

On a trial for murder, where there is a witness to the killing whose testimony, as to all facts prior to the killing, except one, is corroborated by the statement of the accused himself, there is such direct evidence as will render a charge on circumstantial evidence unnecessary. Gibbs v. State (Tex. Crim. App.) 20 S. W. 919.

Upon a trial for assault with intent to murder, where the evidence was pointedly positive that the accused inflicted several wounds upon the assaulted party, who testified directly to it, and the defendant himself testified that he inflicted two of the wounds, the court, in affirming a conviction, said that it was unable to see how a charge on circumstantial evidence was applicable to, or required by, the facts of the case. Upchurch v. State (Tex. Crim. App.) 39 S. W. 371.

On a trial for murder the dying declarations of the deceased, as well as testimony of eyewitnesses, showed that the accused committed the crime; and it was held that this took the case out of the realm of circumstantial evidence. Cruse v. State (Tex. Crim. App.) 77 S. W. 818.

Where, on a trial of one for the murder of his wife, after she was shot, and when she said she was dying, she stated that the accused, her husband, naming him, shot her, and she died in about an hour and a half thereafter, it was

proved by circumstantial evidence, the charge on circumstantial evidence will not be absolutely necessary." But perhaps the best case in point is Jones v. State, 34 Tex. Crim. Rep. 492, 30 S. W. 1059, 31 S. W. 664. In this case the discussion of the principles applied to burglary is involved. At the risk of being prolix, but in order that the same may be made clear, we quote copiously from that case: "Mr. Starkie, in his work on Evidence (§ 863), says: "The force of circumstantial evidence being exclusive in its nature, and the mere coincidence of the hypothesis with the circumstances being, in the abstract, insufficient, unless they exclude every other supposition, it is essential to taking by the accused, it was held that the court did not err in omitting to charge on circumstantial evidence. Granado v. State, 37 Tex. Crim. Rep. 426, 35 S. W. 1069.

upon circumstances to establish any particu- | proved by direct testimony, and the intent lar fact, then, indeed, there would be but merely with which the act was done is few, if any, cases in which such a charge would not be required; but such is not the rule. A charge upon circumstantial evidence is only required when the evidence of the main facts essential to guilt is purely and entirely circumstantial." In the Hanks Case, 56 S. W. 922 (opinion rendered by this court), in reference to whether or not positive evidence of uttering a forged instrument, where the indictment was for the forgery, was sufficiently direct to lift the case out of the realm of circumstantial evidence, the following language was used: "We are aware of the rule, and we adhere to the same, that, when the main act constituting the gravamen of the offense is held that her statements, whether regarded as res gesta, or dying declarations, relieved the court of the necessity of charging the law of circumstantial evidence, as they were an emphatic declaration that the accused shot her. Hernandez v. State (Tex. Crim. App.) 81 S. W. 1210.

2. Larceny.

Where two witnesses testified on the trial of an indictment for larceny to seeing accused in the act of removing the ring from the cravat of the prosecuting witness while he was asleep, such can hardly be said to be a case of circumstantial evidence, and a refusal to charge as to the effect thereof is not error. People v. Burns, 121 Cal. 529, 53 Pac. 1096.

Where, on a trial for the theft of two head of cattle, it appeared, in substance, that the alleged owner was the owner of the cattle and the brand upon them, and that the accused knew both the facts, and had advised another against estraying one of them, assigning as his reason therefor that it was the owner's

and in his brand; and subsequently this animal found its way into the pasture of the accused, a few miles from where it usually ran, and ran in his pasture two or three months, but there

was no evidence as to how it reached there; and the accused knew of the presence of the animal in his pasture for some months, and so stated after his arrest for its theft; and

thereafter the accused appeared at the pasture with a stranger, whom he introduced to a witness whom he had agreed to meet there, and the stranger sold the animals in question to the accused, who wrote a bill of sale from the stranger to himself, and the stranger signed it, and, as soon as the bill was executed the stranger changed the marks and brand on the cattle so as to obliterate the old ones; and the accused then drove the cattle away, and the stranger disappeared and was never heard of, this was held not to be a case demanding an instruction to the jury on the law of circumstantial evidence. Hayes v. State, 30 Tex. App. 404, 17 S. W. 940.

In Rodgers v. State, 36 Tex. Crim. Rep. 563, 38 S. W. 184, the court said: "A charge on circumstantial evidence in theft is not required if a taking is shown by positive testimony."

On appeal from a conviction for theft, where there was direct and positive evidence as to the

On a trial for theft of cattle, where the evidence was positive and direct as to the taking, the defendant himself having so testified, it was held that it was not a case of circumstantial evidence, and therefore the court did not err in omitting a charge on that phase of the law. Blanton v. State (Tex. Crim. App.) 26 S. W. 624.

On a trial for theft of cattle, where a witness testifies positively as to the act of taking, if he is to be believed by the jury the case is one of positive testimony, and a charge upon the law of circumstantial evidence is not required. Taylor v. State (Tex. Crim. App.) 42 S. W. 285.

On a trial for larceny, where positive evidence of the guilt of the prisoner had been adduced, a refusal of the court to charge that, the case being one of circumstantial evidence, the jury must acquit, unless the circumstances exclude any other hypothesis except that of the held to be correct, as prisoner's guilt, was

such an instruction must necessarily have been predicated upon the assumption that positive evidence which had been adduced was unworthy of credit. People v. Kaatz, 3 Park. Crim. Rep. 129.

Where, upon a trial for the theft of cattle, the evidence for the state showed that the de

fendant sold the animals, went with the purchaser upon the accustomed range, and drove them up and delivered them, this was held by the court, on appeal from a conviction, to be the actual taking and proof positive thereof, and the court committed no error in failing to charge the law of circumstantial evidence. Williams v. State (Tex. Crim. App.) 44 S. W. 1103.

Where, on a trial for cattle theft, the only issue in the case was the identity of the animal, and the prosecuting witness swore that the animal stolen belonged to him, this did not raise the issue of circumstantial evidence, and a failure to charge thereon was not error. Gann v. State (Tex. Crim. App.) 59 S. W. 896.

3. Robbery.

In Colter v. State, 37 Tex. Crim. Rep. 284, 39 S. W. 576, it was held that on a trial for

ant's guilt, but it must be wholly inconsistent with any other rational conclusion than that of the defendant's guilt.' The court said: "This rule is proper when the act which is claimed to be criminal is sought to be established by circumstantial testimony. But when the act is proved by direct testimony, and all that remains to be found is the intent which accompanied the act, and which may be inferred from the circumstances accompanying the act, then this principle does not apply.'" In the reversal of this case upon its former appeal this court said: "Now, while it is true a confession to the burglary would take the case out of the rule, yet a confession to theft alone, under the circumstances of this case, would not make

inquire with the most scrupulous attention | to be, not only consistent with the defendwhat other hypotheses there may be which may agree wholly or partially with the facts in evidence.' The court, in Beavers' Case, said: 'We can conceive of no hypothesis by which, in the order of natural causes and effects, the facts proved can be explained consistently with the innocence of the prisoner; and this is the true test of circumstantial evidence. It excludes all reasonable doubt of the prisoner's guilt.' 58 Ind. 531, 537. But this principle applies only to proof of the act, and not to proof of the intent. Accordingly, in a case of burglary, an instruction which contained the following sentence was properly refused: 'Where a criminal intent is to be established by circumstantial evidence, the proof ought' robbery a charge on circumstantial evidence is not called for where there is positive evidence of the participation by the accused in the robbery.

On a trial for robbery, where the prosecuting witness identified the accused as one of the parties who robbed him, this was held to be a case of positive testimony, which did not require that the court give a charge on circumstantial evidence. Evans v. State (Tex. Crim. App.) 31 S. W. 648.

Where, on a trial for robbery, the person robbed testifies directly to the facts, and positively identifies the accused as the person who robbed him, this is not a case dependent upon circumstantial evidence, and a failure to charge in regard to the same is not error. Droak v. State (Tex. Crim. App.) 43 S. W. 988.

4. Rape.

Where, on a trial for rape, the defendant's guilt is established by direct and positive evidence, in the language of the court, "as much so as possible for human evidence to be," a request by the accused that the court charge that the evidence for the state must exclude every other hypothesis than that of the prisoner's guilt, and, unless it is so conclusive, they shall find the defendant not guilty, is properly refused. Cone v. State, 13 Tex. App. 483.

And in Ellis v. State, 33 Tex. Crim. Rep. 86, 24 S. W. 895, the court said: "There was no error in refusing the charge of circumstantial evidence. The testimony is positive that defendant committed the rape."

In Ricks v. State (Tex. Crim. App.) 87 S. W. 345, the court, in affirming a judgment of conviction for rape, said: "Exceptions were reserved to the charge because it failed to submit the law of circumstantial evidence. This is not a case of circumstantial, but of most positive, testimony. The girl testified fully in regard to the whole matter, as to the intercourse, and all the facts and attending circumstances. Nor was it necessary for the court to submit the law of aggravated assault, as urged by appellant. This was a case of rape, if the state's testimony is true. If appellant's theory is correct, the transaction did not occur. The [prosecutrix] testified directly and positively to the penetration. Appellant, the only other eyewitness, testified that it did not occur, and contradicted the entire tes timony of the prosecutrix."

Where a request to charge, on a trial for rape, is based upon the assumption that the case of the prosecution rests exclusively upon circumstantial evidence, which assumption is not true, such request is properly refused. People v. Baldwin, 117 Cal. 244, 49 Pac. 186.

5. Other crimes.

Where, on a criminal trial for forgery, all the evidence of the guilt of the accused is circumstantial, an assignment of error that the court erred in charging on circumstantial evidence because the case depended on positive evidence will not be sustained. Rountree v. State (Tex. Crim. App.) 58 S. W. 106.

See State v. Fairlamb, 121 Mo. 137, 25 S. W. 895, supra, III. a, 1.

It is never necessary to charge the law of circumstantial evidence in a criminal prosecution, where the testimony as to the inculpatory fact is direct and positive; and so a conviction for passing a forged check will not be reversed where the evidence as to the forgery was circumstantial, but the passing of the forged instrument by the appellant was direct and positive, as where he testified to the fact himself. Wolf v. State (Tex. Crim. App.) 53 S. W.

108.

On a trial for fraudulently converting the property of another, where the evidence was positive and direct that the accused made a contract with the owner of the horse, and hired the horse to make a trip into the country from the place of the hiring, and was also direct and positive that the accused had possession of the horse in the county of the trial, and sold it; and the fact that the owner, having sent the horse by a hired hand, could not swear that the latter delivered the horse in person to the accused, did not take it out of the realm of positive testimony. Lewallen v. State (Tex. Crim. App.) 87 S. W. 1159.

Where the offense of which one was convicted was charged to be swindling by obtaining an amount of money of a bank on a false representation; and the proof showed that the accused made the representation directly to the bank, and drew his check in favor of the bank against another bank; and the representation was shown by an employee of the latter bank to be false; and the defense predicated on the defendant's testimony was a positive claim by him that he believed that he had at