
    BEARD v. STATE.
    (No. 7941.)
    (Court of Criminal Appeals of Texas.
    May 7, 1924.)
    I. Criminal law <&wkey;792(2) — 'Testimony held to justify charge on principals.
    Testimony of officers that defendant was found in another car close to the stolen one, on the same road, and carrying property which was in the stolen car when taken, and tools freshly used and capable of changing engine numbers of the stolen car, which had been changed, justified a charge on principals.
    2. Criminal law <&wkey;775(2) — Reversible* error to refuse special charge as to alibi raised by testimony.
    Refusal to give special charge on alibi, based on evidence raising that issue, which was not set out or submitted in the main charge, is reversible error.
    Appeal from District Court, Baylor County; J. H. Milam, Judge.
    Rex Beard was convicted of theft of property of the value of more than $50, and he appeals.
    Reversed and remanded.
    Dickson & Newton, of Seymour, and Davenport, Cummings & Thornton, of Wichita Falls, for appellant.
    Tom 'Garrard, State’s Atty., and Grover C. Morris, Asst. State’s Atty., both of Austin, for the State.
   LATTIMORE, J.

Appellant was convicted in the district court of Baylor county of theft of property of the value of more than $50, ana his punishment fixed at two years in' the penitentiary.

A Ford car was taken, in Seymour, Baylor county, one night. It was a new car, having been driven less than 100 miles at the time. Officers in Wichita Falls were watching the Seymour and Wichita Falls road for the car at about 1 or 1:30 a. m. that same night. Two Ford cars came up from the direction of Seymour, moving 30 or 35 miles per hour. One of the officers said they waved for the ears to stop, but they did not. Directly after passing, the cars separated. Two officers pursued one, and a single officer the other. The latter was on a motorcycle, and soon overtook the car pursued by him, in which he found appellant. The ear was not the stolen car, but in it, upon search,. were found a blanket and a jack, which were later identified as being in the stolen car at the time it was taken. There were also found in this car a file or files, freshly used, having filings in the teeth of one of said files; also a set of dies used for stamping or stenciling numbers upon engines. The two officers who pursued the other car followed it a short distance, and then its lights were put out and the car was abandoned. It was the sto.len car. Examination revealed the fact that the engine number had been freshly filed off and other numbers stenciled thereon.

Bearing in mind these facts, we observe that there is no merit in appellant’s contention that the learned trial judge erred in charging the jury upon the law of principals. Officers testified that in their judgment the man driving the alleged stolen car on said night was Robert Clare. Appellant being found in close proximity to the stolen car, coming on the same road, having in his car part of the stolen property, which was in the other car when taken, and having in his car tools freshly used and capable of making the change in the numbers on the engine of the alleged stolen car, which had been changed that night, clearly justified the giving of a charge on principals..

The charge on circumstantial evidence given presents fully the test of exclusion and the other necessary elements of a proper charge, and we do not think it open to the exception reserved, or that the special charge refused more fully or correctly sets out the law of such issue.

Appellant testified that he was in Wichita county on the night of the alleged theft, and was not in Baylor county, and supported his claim by other witnesses, who gave testimony to the same effect. The main charge did not submit the issue of alibi. Appellant presented the following special charge:

“Gentlemen of the Jury: You are instructed that if you should find and believe from the evidence that the defendant Rex Beard was not present at the time of the original taking of the automobile alleged to have been stolen, or if you have a reasonable doubt as to whether he was present or not, you will give the defendant the benefit of such doubt and acquit him.”

The refusal of this charge was properly excepted to. If there be testimony raising the issue of alibi, it is error to refuse a correct special charge containing the law of such issue, when it is not set out or submitted in the main charge. Long v. State, 11 Tex. App. 387; Jones v. State, 30 Tex. App. 345, 17 S. W. 544; Tittle v. State, 35 Tex. Cr. R. 97, 31 S. W. 677; Joy v. State, 41 Tex. Cr. R. 49, 51 S. W. 933; Schaper v. State, 57 Tex. Cr. R. 201, 122 S. W. 257. Deeming the evidence to raise the issue of alibi, and a proper special charge having been presented and refused, it becomes our duty to reverse and remand the case for the error of said refusal; and it is so ordered.  