
    SPEARS v. STATE.
    (No. 9188.)
    (Court of Criminal Appeals of Texas.
    Oct. 28, 1925.
    On Motion for Rehearing Feb. 24, 1926.
    On Application to File Second Motion for Rehearing March 24, 1926.)
    1. Larceny <®=»68(I).
    Whether accused was guilty of theft of automobile casing held for jury.
    2. Larceny <@=>45 — Witness who could not identify his stolen automobile casing by means of number on it could resort to other means of identification.
    Witness who could not identify his stolen automobile casing by means of number oh it could resort to other means of identification; credibility and weight of his testimony being for jury.
    3. Larceny <§=358.
    Witness held to have identified automobile casing stolen from his car.
    4. Criminal law'<@=>815(l).
    Requested charge, authorizing acquittal based on conclusions of jury, formed only on consideration of state’s evidence, held proper'y refused.
    
      5. Criminal law <§=o549.
    Jury may consider evidence offered by accused as well as by state in determining question of guilt.
    On Motion for Rehearing.
    6. Larceny <§=>7&(3).
    Evidence in prosecution for theft of automobile casing held to justify charge on recent possession^
    On Application to Pile Second Motion for Rehearing.
    7. Criminal law <@=3829(4) — When claimed purchase of stolen property is defense, proper charge upon that issue is sufficient without charge on explanation of possession.
    When claimed purchase of stolen property is defense, proper charge upon that issue is sufficient, and it is not necessary to give the charge upon explanation of possession of recently stolen property.
    Commissioners’ Decision.
    Appeal from Hill County Court; W. L. Wray, Judge.
    Tom Spears was convicted of theft of property under the value of $50, and he appeals.
    Affirmed.
    Morrow & Stollenwerck, of Hillsboro, for appellant.
    Sam D. Stinson, State’s Atty., of Austin, and Nat Gentry, Jr., Asst. State’s Atty., of Tyler, for the State.
   BERRY, J.

The appellant was convicted in the county court of Hill county for the offense of theft of property under the value of $50, and his punishment assessed at confinement in the county jail for a term of 180 days.

The facts show that M. L. Gray, the alleged injured party, on the 23d of February, 1924, had an accident near Aquilla, and left his car by the side.of the road on Sunday afternoon; that at the time he left the car it had four automobile casings on it, and, when he came back' Monday morning, one of the rear casings had been taken off. The missing casing was a 30x3% Goodyear cord easing, with a grey United States tube. It was an oversize casing. This witness further testified that he found this casing on a Ford roadster belonging to the defendant in the town of Hillsboro. The appellant testified that the casing, which was in court, and which was identified by Gray as bqing the one he lost, was secured by him by purchase from a Bohemian on the Sunday night,' the 23d day of February, 1924. This is a sufficient statement of the facts.

By bill of exceptions No. 1 appellant complains at the court’s action in refusing to instruct a verdict of not guilty. This complaint is without merit. The state’s testimony, if believed, was sufficient to warrant a conviction. The testimony of ttíp appellant was sufficient to account for his possession of the stolen casing in a manner consistent with his innocence. The issue thus presented was one for the jury, and, under the facts contained in this record, this court will not disturb the verdict rendered.

By bill of exceptions No. 2 appellant complains that the identification of the casing alleged to have been stolen was insufficient, in that the testimony shows that the casing contained a number (32296) which could- be easily read, and, in view of the fact that the prosecuting witness was not able to say that this was the factory number of the casing lost by him, and in view of the further fact that he did not produce the dealer from whom he had bought the casing, that he should not have been permitted to testify as to the identity of the casing lost with the one found in the possession of the defendant. In other words, it is appellant’s contention that the state witness did not sufficiently identify the stolen casing, and that it was really in his power to definitely identify it by the number that was on it, and that, in the absence of his identifying it by the number, he was not entitled to resort to other means of identification. We cannot agree with appellant’s contention in this respect. The witness repeatedly stated it was his casing, and also stated that he identified it by certain cuts that were found on the casing, claiming that same were made by mud* chains. Appellant’s objection, as stated above, would go to the weight and credibility of this testimony, and not to its admissibility.

Bill of exceptions No. 3 seeks to raise the question of misconduct of the jury. He introduced but one of the jurors by whom he sought to show misconduct, and this juror failed to testify to anything that could ue regarded as improper under any rule announced in any of the decisions of this court.

The court gave a charge on circumstantial evidence, and by special charge ino. 2 appellant requested the court to give a chargie on circumstantial evidence in the identical language that was given, but in addition thereto requested the court to also state in said charge the following:

“Unless you believe that the evidence on behalf of the state has measured up to the foregoing requirements, and unless you believe that every reasonable theory of the appellant’s possession of the casing in question other than his guilty possession thereof has been excluded by the state’s evidence beyond a reasonable doubt, you will find the defendant not guilty.”

We think the court was not in error in refusing to give this additional instruction. We think the requested charge was more onerous than the law places on the state, in at least two particulars; First, in requiring the jury to acquit, unless every reasonable theory of the defendant had been excluded by tbe state’s testimony; and, second, in requiring tbe jury to acquit, unless every reasonable theory of tbe defendant’s possession of tbe casing in question other than his guilty possession thereof bad been excluded by tbe state’s evidence. We take it that it is a well-known rule in this state that tbe jury may look to all of tbe evidence in tbe case— that offered by tbe appellant as well as that offered by tbe state — in determining whether the party on trial be guilty of tbe offense charged.

Finding no error in tbe record, it is our opinion. that tbe judgment should be in all things affirmed.

PER CURIAM.

Tbe foregoing opinion of tbe Commission of Appeals has been examined by tbe judges of tbe Court of Criminal Appeals and approved by tbe court.

On Motion for Rehearing.

BERRY, J.

Appellant complains in bis motion for rehearing at our failure to pass on tbe objection raised to tbe court’s charge on recent possession of stolen property, and cites the ease of Cagle v. State, 106 S. W. 356, 52 Tex. Cr. R. 307, as supporting bis contention. We have carefully examined appellant’s motion and eases cited by him, and are of tbe opinion that the charge as given was correct. We think a careful examination of the charge in tbe Cagle Case, supra, will disclose that it was materially different from tbe charge given in tbe instant case. Tbe charge in tbe instant ease is in accord.with tbe form laid down by Judge Henderson in tbe case of Wheeler v. State, 30 S. W. 913, 34 Tex. Cr. R. 350.

Neither can we sustain appellant’s contention that tbe court was in error in giving any charge on recent possession. We think tbe evidence clearly raised this issue, and tbe court was correct in submitting it.

Believing that tbe case has been correctly disposed of, appellant’s motion for rehearing is in all things overruled.

PER CURIAM.

The foregoing opinion of tbe Commission of Appeals has been examined by tbe judges of tbe Court of Criminal Appeals and approved by tbe court.

On Application to File Second Motion for Rehearing.

HAWKINS, J.

Appellant requests leave to file a second motion for rehearing; still insisting we are in error in approving tbe charge given on the explanation of possession of recently stolen property. Tbe ■charge condemned in Cagle’s Case, 106 S. W. 356, 52 Tex. Cr. R. 307, required tbe explanation to “account for defendant’s innocence,” and such was the effect of tbe charges in tbe other - authorities cited by appellant. Tbe charge given by tbe learned trial judge in tbe present instance is a literal copy of tbe charge laid down as correct in Wheeler v. State, 30 S. W. 913, 34 Tex. Cr. R. 350. That charge has been approved in Grande v. State, 38 S. W. 613, 37 Tex. Cr. R. 51; Moore v. State (Tex. Cr. App.) 33 S. W. 980; Wright v. State, 34 S. W. 273, 35 Tex. Cr. R. 470; Wilson v. State (Tex. Cr. App.) 34 S. W. 284; Roberts v. State, 129 S. W. 611, 60 Tex. Cr. R. 20, and some 50 other cases will be found listed in Shepard’s Texas and S. W. Reporter Citations, wherein tbe charge in Wheeler’s Case is approved; the last being Hunt v. State, 229 S. W. 869, 89 Tex. Cr. R. 89. In tbe last case we called attention to tbe suggestion made by Judge Davidson in Roberts v. State, supra, which was to tbe effect that, when claimed purchase of stolen property was the defense, a proper charge upon that issue was sufficient and much simpler than a charge upon explanation of possession of recently stolen property. For the benefit of the trial judges we again direct attention to the subject.

Being convinced that our former opinions properly disposed of the case, permission to file a second motion for rehearing. Is denied. 
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