
    WOODS v. STATE.
    (No. 4158.)
    (Court of Criminal Appeals of Texas.
    Oct. 11, 1916.)
    1. Criminal Law <®=^77g(2) — Appeal—Harmless Erroe — Charge on Alibi.
    A cause should not be reversed for the refusal of a charge on alibi, unless, in the light of all the testimony, the evidence excludes the theory of defendant’s presence at the place of the crime.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. § 1833; Dec. Dig. <g=»775(2)J
    2. Criminal Law <®=>775(2) — Trial—Refusal ,oe Charge on Alibi.
    In a prosecution for an aggravated assault upon a female, where the testimony of the officer was that he saw the assault committed in defendant’s room, and that immediately after he found only defendant and the woman in the room, and that no one had left until he reached the room, and both defendant and the woman testified that defendant was there at the time, both denying that defendant committed any assault, and the court, after defining the offense, required the jury to find beyond a reasonable doubt that defendant then and there committed an aggravated assault upon the woman, in addition to charging that defendant, is presumed to be innocent until his guilt is established by legal evidence beyond a reasonable doubt, the refusal of a charge on alibi was not reversible error, since a charge on alibi is not required if defendant’s theory is not inconsistent with the state’s theory that he was present at the commission of the offense.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. § 1833; Dec. Dig. <S==>775(2).]
    
      Appeal from Wichita County Court; Harvey Harris, Judge.
    Levi Woods was convicted of an' aggravated assault and battery upon a female, and he appeals.
    Judgment affirmed.
    Martin & Oneal, of Wichita Palls, for appellant. John Davenport, Asst. Co. Atty., of Wichita Palls, and C. O. McDonald, Asst. Atty. Gen., for the State.
   .PRENDERGAST, P. J.

Appellant, an adult male, was convicted of an aggravated assault and battery upon a female. There is but one question in the case, and that is whether the couYt should have given a charge on alibi.

It seems now to be the settled rule “that, unless the testimony fails to exclude the idea of accused’s presence at the time of the commission of the offense, a charge upon the subject of alibi need not be given,” and “in no case should a cause be reversed for the refusal of such a charge, unless, in the light of all the testimony, the evidence excludes the theory of appellant’s presence at the place of the crime,” as said by this court through Judge Ramsey in Underwood v. State, 55 Tex. Cr. R. 605, 117 S. W. 809. The rule is thus again stated: A charge on alibi is not required if defendant’s theory is not inconsistent with the state’s theory that he was present at the commission of the offense. Underwood v. State, 55 Tex. Cr. R. 604, 117 S. W. 809; Parker v. State, 40 Tex. Cr. R. 121, 49 S. W. 80. And see Hernandez v. State, 64 Tex. Cr. R. 73, 141 S. W. 268; Myers v. State, 65 Tex. Cr. R. 448, 144 S. W. 1134.

The state’s theory and testimony was that appellant committed an assault and battery upon his paramour, Mattie Lee Williamson, at her room over the garage on the Perguson place at 12:30 o’clock at night. The state did not claim that the offense was committed at any other time or place. The testimony of the officer was that he saw the assault and battery committed at this time and place, and that immediately after he saw it he went up into this woman’s room and found only appellant and her therein, and no one had left there from the time he saw the assault and battery until he reached the room. Both appellant and the woman testified that he was there at that time, but both denied that he then or at any other time or place committed any assault or battery upon her. She further testified that some unknown “chufty or heavy built” negro man assaulted her at 10:40 that night, not in her room at all, but elsewhere in the back yard of the Perguson premises. She and appellant both further testified that appellant was not there at that time, 10:40, but he shows that he was elsewhere at that particular time. They both further swear that appellant came to her room about one hour later, and remained there continuously until the assault and battery testified to by the other state’s witness occurred.

The court in his charge, after properly defining the offense as alleged, required the jury to find and believe from the evidence beyond a reasonable doubt, that appellant, being an adult male, then and there committed an aggravated assault and battery upon said woman. In addition, he gave the usual charge that the defendant is presumed to be innocent until his guilt is established by legal and competent evidence beyond a reasonable doubt, and, if they had such doubt, to acquit him.

Under the facts of this case and the law, the court committed no reversible error in refusing to charge on alibi.

The judgment is affirmed. 
      «SraoFor other oases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes
     