
    COZART v. STATE.
    (No. 4132.)
    (Court of Criminal Appeals of Texas.
    Oct. 4, 1916.)
    CRIMINAL Law <&wkey;823(6) — Haemless Ekeoe— Submitting Alibi.
    Even if testimony sufficiently suggested the issue of alibi for its submission, failure to submit it was not reversible error, the jury being instructed that the circumstances must show to a moral certainty that defendant, and no other person, committed the offense, and exclude to a moral certainty every other reasonable hypothesis than his guilt.
    [Ed. Note. — Eor other cases, see Criminal Law, Cent. Dig. §§ 1992-1995; Dec. Dig. &wkey;> 823(6).]
    Appeal from District Court, Bexar County; W. S. Anderson, Judge.
    E. C. Cozárt was convicted, and appeals.
    Affirmed.
    C. C. McDonald, Asst. Atty. Gen., for the State.
   PRENDERGAST, P. J.

Appellant was convicted of burglary, with the lowest punishment assessed.

The uncontradicted testimony shows that during the night of December 29, 1915, Mr. Threlkeld’s chicken house, in San Antonio, was burglarized and some 75 chickens, 65 of them fine black Minoreas, and a can of oil were stolen therefrom at the time. The Min-orcas were worth from $1 to $1.50 each. Threlkeld discovered the burglary and theft before daylight on the morning o.f December 30th, and at once began to search for his stolen property. He soon located 45 of his chickens in Mr. Werbner’s coops. Werbner showed he had bought them from appellant early that morning, and took Threlkeld and the officers to appellant and identified him as the party from whom he had bought them. The other chickens could not be found. Appellant admitted he had bought some “four and one-half or five dozen, more or less,” chickens very early that morning from a man, a stranger, who looked, and was dressed, like a farmer and had a farm wagon. These chickens, found at Werbner’s, were part of them. Appellant’s wagon was searched at the time, and Threlkeld’s stolen can of oil, with wood piled around it, and covered with a coat or wagon sheet, found therein. Appellant’s defense was that he bought the property. -We do not give all the evidence, nor conclusions therefrom.

When the trial judge first prepared his charge, as the statute requires, he submitted it to appellant’s attorneys. They then filed with him their objections thereto — a large number of objections. Upon consideration whereof the judge evidently made changes in his charge, and at least met some of them. The record does ' not furnish us sufficient data from which we can definitely tell what the original charge was, nor all the changes therein. From the objections and charge as it now is, we can see that some changes were made and objections met.

In appellant’s first bill, he claims the judge erred in not peremptorily charging the jury to acquit him, “because the state did not controvert his explanation when first questioned as to his possession of the recently stolen property, and that his explanation was reasonable and probably true from the uncontroverted evidence.” and in refusing his special charge to that effect. Appellant was mistaken in claiming the state did not contest his explanation. It did so vigorously, and the whole evidence was amply sufficient to justify the jury, without doubt, to find, as it evidently did, that his explanation was both unreasonable and untrue. We see no necessity of reciting the testimony. 2 Branch An. P. G. p. 1283, and cases collated. The court properly submitted these questions to the jury in a correct charge such as has uniformly been approved. Wheeler v. State, 34 Tex. Cr. R. 350, 30 S. W. 913; Id., 38 Tex. Cr. R. 73, 41 S. W. 615; Lovelace v. State, 45 Tex. Cr. R. 263, 76 S. W. 756; Roberts v. State, 60 Tex. Cr. R. 23, 129 S. W. 611; Bacon v. State, 61 Tex. Cr. R. 208, 134 S. W. 690. It is useless to collate the large number of other cases to the same effect.

What we have said as to appellant’s first bill disposes of his second and third on the same point.

In his next, he complains the court erred in not submitting alibi in his charge. This was not his defense. His defense was that he bought the stolen property from a stranger, and neither stole the property nor burglarized the house. The judge qualified and explained this bill in quite a lengthy statement. Among other things, he said:

“That there was no evidence in the record to require the submission of the issue of alibi, for the following reasons: The testimony in this case showed that the offense was committed'between 6 p. m. on December 29, 1914, and 6 a. m. on December 30, 1914, and there was no testimony to show that the defendant was anywhere except at the place of the commission of the offense at that time.”

He then proceeded to make further statements, bearing out and supporting that quoted, and followed with a verbatim statement of several pages in question and answer form of the testimony claimed to raise this issue. We have read and considered the whole, and cannot say the trial judge was incorrect. Appellant himself testified. He, by his testimony, in no way raised such an issue. Of all witnesses, he would know where he was, and, if not at' the place when the burglary and theft was committed at the time, would doubtless have testified exactly where he was. The only testimony claimed to suggest the issue was that of his wife. But we think if hers could be considered as suggesting the issue, it did not do so sufficiently to require the judge to submit that question. Davis v. State, 28 Tex. App. 542, 13 S. W. 994; Bishop v. State, 43 Tex. 390; Cunningham v. State, 17 Tex. App. 89; Elam v. State, 16 Tex. App. 34; Coffman v. State, 73 Tex. Cr. R. 303, 165 S. W. 939; Wilson v. State, 60 Tex. Cr. R. 1, 129 S. W. 613; Lopez v. State, 73 Tex. Cr. R. 627, 166 S. W. 154; Treadway v. State, 65 Tex. Cr. R. 208, 144 S. W. 655; and many other cases. Besides the court, in clear and plain instructions, among other things, told the jury they must believe from the evidence beyond a reasonable-doubt that the defendant, by force, in the nighttime, did enter the house of said' Threlkeld, as charged in the indictment, with the intent to commit the crime of theft, before they could convict him, and that he was presumed to be innocent until his guilt was established by legal evidence beyond a reasonable doubt, and if they had a reasonable doubt of his guilt to acquit him and say by their verdict not guilty. The judge further gave an accurate and full charge on circumstantial evidence, and told the jury:

“The circumstances, taken together, must be of a conclusive nature, leading, on the whole, to a satisfactory conclusion, and producing, in effect, a reasonable and moral certainty that the accused, and no other person, committed the offense charged. It is not sufficient that the circumstances .coincide with, account for, and therefore render probable, the guilt of defendant; they must exclude to a moral certainty every other reasonable hypothesis except the defendant’s guilt, and unless they do so beyond a reasonable doubt, you will find the defendant not guilty.”

So that in no contingency does this bill present reversible error.

Appellant’s only other bill is too general for review. In it he merely excepted to the court’s refusal to give his special charges— there were several- — or correct his main charge to conform to all his objections.

The judgment is affirmed. . 
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