
    HERNANDEZ v. STATE.
    (No. 8349.)
    (Court of Criminal Appeals of Texas.
    Jan. 30, 1924.)
    1. Criminal law <@=3814(10) — Denial of instruction as to effect of defendant’s drunkenness held not error.
    In a prosecution for theft of an automobile, denial, on the ground that the evidence did not raise the issue, of an instruction that, if defendant was so drunk as to be incapable of forming a fraudulent intent, he should be acquitted, held not error.
    2. Criminal'law <@=829(4)— Denial of instruction as to- temporary use held not error.
    In a prosecution for theft of an automobile, where a witness had testified that defendant told him the owner of the car had sent him on an errand with it, and .where the court instructed that, if such were the fact, the jury should acquit, denial of a requested instruction on the issue of “temporary use,” held not error.
    3. Criminal law <§=4I3(2) — Evidence of inquiries by defendant as to why he was confined in jail rejected as self-serving.
    In a prosecution for theft of an automobile, where there was evidence tending to establish drunkenness of defendant at the time of the theft, evidence that some 6 or 8 hours after his arrest'he inquired of the jailer why he was in jail, held properly excluded as self-serving.
    Appeal from District Court, Webb County; J. F. Mullally, Judge.
    German Hernandez was convicted of larceny, and he appeals.
    Affirmed.
    Tom Garrard, State’s Atty., and Grover C. Morris, Asst. State’s Atty., both of Austin, for the State.
   HAWKINS, J.

Appellant is tinder conviction for theft of an automobile from J. B. Almond. Punishment two years in the penitentiary.

About -midnight Almond left his car in front of the Plaza Café in Laredo while he stepped into the café to get something to eat. He came out in about 20 minutes, and his car was gone. Almond immediately reported the matter to police headquarters. About an hour later, while Almond, in company with some friends, was on his way home, some one passed-in a ear which he recognized as his. They followed; the car turned into the dark part of a street, stopped, and the lights were switched off. When the owner of the car and the parties with him came up they found appellant in charge of it. He claimed the car as his own, but made contradicting statements as to how he came into possession of it. Appellant did not testify, but made proof by several witnesses that he was drinking on the night of the alleged theft; some of the witnesses said he was drunk.

A special charge requested and refused was to the effect that, if appellant was so drunk as to be incapable of forming a fraudulent intent, he should be acquitted. The learned trial judge declined to submit such instruction on the ground that the evidence failed to raise the issue. We do not take the time to set out all the evidence, but, after reviewing it, we have reached the conclusion that the court was right in his action.

Another special charge requested was upon the issue of taking the ear for “temporary use” only. The only evidence upon which such a charge could be based was from one witness who testified that appellant told him “Almond had sent him to get him a bottle of tequila.” The court charged that, if Almond sefit appellant with the automobile on an errand, appellant would not be guilty, and told the jury to acquit if they entertained a reasonable doubt upon that issue. There was no necessity for a further charge upon the subject.

Appellant offered to prove by the jail,er that some 6 or 8 hours after the arrest the appellant inquired why he was in jail. This was rejected a@ self-serving. There was no error in this ruling. If, after such lapse of time, appellant had offered to prove that he then said he was so drunk he did not know why he was arrested, it would have been clearly self-serving and inadmissible.

We find no error calling for a reversal, and the judgment is affirmed. 
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