
    HUGHES v. STATE.
    (No. 3829.)
    (Court of Criminal Appeals of Texas.
    Nov. 24, 1915.)
    1. Criminal Law &wkey;>982 — Trial—Instructions.
    Where defendant, charged with theft, filed application for suspension of sentence, there was no necessity for the court to charge that the filing of the plea creates no presumption of guilt, unless the state contended that such was the case.
    [Ed. Note. — Eor other cases, see Criminal Law, Cent. Dig. §§ 2500, 2501; Dee. Dig. &wkey;> 982.]
    
      2. Criminal Law @=>775 — 'Trial—Refusal oj? Instruction on Alibi.
    In a prosecution for theft, where defendant did not testify as to his whereabouts on the night of the crime, except that he was not at a drug store near the scene where the state’s evidence placed him, and the court, in addition to giving the usual charges on reasonable doubt and presumption of innocence, gave a full charge on circumstantial evidence, to which defendant did not except, also instructing at defendant’s request that if the jury believed that the stolen horse was taken from its owner by a person other than defendant, or if they had a reasonable doubt of the fact, they should acquit, the'refusal of defendant’s request to charge on alibi was not error.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 1833-1837; Dec. Dig. @=> 775.]
    Appeal from District Court, Johnson County; O. L. Lockett, Judge.
    T. J. Hughes was convicted of crime, and he appeals.
    Affirmed.
    C. C. McDonald, Asst. Atty. Gen., for the State.
   HARPER, J.

Appellant was convicted of theft of a horse from J. W. Hayes, and his punishment assessed at two years’ confinement in the state penitentiary.

Appellant filed an application for a suspension of sentence, and the plea was properly submitted to the jury in'the court’s charge. Appellant requested the court to instruct the jury that the filing of the plea creates no presumption of guilt against defendant. There was no necessity to give such charge, as there was no contention made by the state that the filing of such a plea created any presumption of guilt. Had such a contention been made, it would have been proper for the court to have so instructed the jury.

The appellant also requested the court to charge on alibi. The evidence raises no such issue. There is no testimony from defendant as to his whereabouts on the night of the theft. He admits that he rode the horse, for which the stolen horse was traded, into Ft. Worth, and sold the saddle that was stolen at the time of the theft of the horse. He does not undertake to show his whereabouts on the night of the theft, but denies that he was at the drug store of Mr. Mothershed, within three miles of the place where the horse was stolen, on that night. The state’s evidence places him at this drug store, and this would place him in proximity to the place from where the horse was stolen; Mr. Souther positively identified him as the man who traded to him the stolen horse, and says he traded to appellant the horse he rode into Ft. Worth, and which appellant says a man named Noland got him to ride into Ft. Worth. The court gave a full and fair charge on circumstantial evidence, and one to which appellant did not reserve any exception. He also instructed the jury at appellant’s request:

“If you believe from the evidence that the horse in controversy was actually taken from the possession of the witness Hayes by one No-land, or if you have a reasonable doubt of that fact, then you will acquit the defendant.”

In addition, he gave the usual and customary charge on reasonable doubt and presumption of innocence.

The judgment is affirmed.  