
    TERRELL v. STATE.
    (No. 3462.)
    (Court of Criminal Appeals of Texas.
    March 10, 1915.
    On Motion for Rehearing, April 7, 1915.)
    1. Robbery <&wkey;17 — Indictment — Sufficiency.
    Code Cr. Proc. 1911, arts, 458, 468, providing that a general description in an indictment of any property by name, kind, quality, number, and ownership is sufficient, and that, in an indictment for theft of money, it is sufficient to describe it as money, an indictment for robbery, which describes the money stolen as $70 in gold, current money of the United States, and $160 in bank notes, current money of the United States; is sufficient, though the prosecutor can give a full description of both the gold and the bank notes by stating the denominations thereof.
    [Ed. Note. — For other cases, see Robbery, Cent. Dig. §§ 16-23, 26; Dec. Dig. &wkey;3l7.]
    2. Criminal Law <&wkey;1030 — Questions Reviewable — Objections in Trial Court.
    The court on appeal and accused are bound by objections made in the trial court at the time of trial, and any additional objections cannot be considered.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2619-2621, 2632, 2653: Dec. Dig. <&wkey;>1030.]
    3. Criminal Law <@=»784^Circumstantial Evidence — Instructions.
    Where, on a trial for robbery, prosecutor under direct examination positively stated that he saw, knew, and identified accused as the person who robbed him, and the cross-examination tended only to impair his positive testimony, the state’s case did not depend on circumstantial evidence, and a charge on circumstantial evidence need not be given.
    [Ed. Note. — For other cases, see Criminal .Law, Cent. Dig. §§ 1883-1888,1922, 1960; Dec. Dig. (&wkey;>784J
    4. Criminal Law <&wkey;>784 — Instructions Favorable to Accused — Right to Complain.
    Where, on a trial for robbery, prosecutor testified positively that he saw, knew, and identified accused as the person who robbed him, and the cross-examination merely tended to impair his positive testimony, accused could not complain of a charge that, if the jury believed that prosecutor did not see accused, the state would rely wholly on' circumstantial evidence for a conviction followed by a correct statement on the law of circumstantial evidence, for the charge was in accused’s favor and left the whole question to the jury.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 1883-1S88, 1922, 1960; Dec. Dig. &wkey;784.]
    5. Criminal Law <&wkey;llll — Bill of Exceptions — MO DIKICAT IONS.
    Accused accepting a bill of exceptions, as qualified by the trial court, is bound by the qualification.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2S94-2896; Dec. Dig. <&wkey; 1111.]
    . On Motion for Rehearing.
    6. Criminal Law <&wkey;763, 764 — Instructions —Weight of Evidence.
    An instruction that if the jury believed from the evidence that prosecutor did not see accused at the time of commission of the offense, as testified to by prosecutor, or if the jury had a reasonable doubt thereof, the state must rely on circumstantial evidence to convict, was not a charge on the weight of the evidence, within the inhibition of Code Cr. Proc. 1911, art. 735.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 1731-1748, 1752, 1768, 1770; Dec. Dig. &wkey;703, 764.]
    7. Criminal Law <&wkey;822 — Instructions — Construction.
    The whole charge must be considered when any particular paragraph thereof is attacked.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 1990, 1991, 1994, 1995, 315S; Dec. Dig. &wkey;822.]
    8. Criminal Law <&wkey;1172 — Instructions — Prejudicial Error. *
    Where the court charged on alibi, and that the burden of proof was on the state, that accused was presumed to be innocent until his guilt was established beyond a reasonable doubt, and that the jury were the exclusive judges of the facts proved, of the credibility of the witnesses, and of the weight to be given to their testimony, any error in a charge that if the jury believed that prosecutor did not see accused commit the offense, as testified to by him, the state must rely on circumstantial evidence to convict, construed as a charge on the weight of the evidence, was not reversible.
    [Ed. Note. — For other cases, see Criminal lLaw, Cent. Dig. §§ 312S, 3154^-3157, 3159-3163, |31G9; Dec. Dig. &wkey;1172.]
    Appeal from District Court, Kinney County ; W. C. Douglas, Judge.
    Will Terrell was convicted of robbery, and lie
    Affirmed, and motion for re-|iearing overruled.
    Jones & Thurmond, of Del Rio, for ap-lellant. C. C. McDonald, Asst. Atty. Gen., lor the State.
   I PRENDERGAST, P. J.

Appellant was toileted for the robbery of William Van Burén money, and his punishment assessed at years in the penitentiary.

The indictment describes the money as lllows:

‘‘Seventy dollars in gold, current money of the |nited States of America, of the value of seven-dollars; one hundred and sixty dollars in Ink notes, current money of the United States I America, of the value of one hundred and |:ty dollars, a better description of the mon-T being to the grand jury unknown.”

⅛ the trial of the case said Van Burén ■ve a full description of both the gold and the bank notes, telling the denominations of the gold pieces and of the bank notes, and because of this appellant claims there is a fatal variance between the allegations and proof. Under the statute and many decisions of this court, the money as described was amply sufficient. Articles 458 and 468, C. C. P.; Ferrell v. State, 152 S. W. 901; Sims v. State, 64 Tex. Cr. R. 435, 142 S. W. 572; McAdams v. State, 172 S. W. 792, and cases cited in these.

The evidence was ample to show and justified the jury to believe, beyond a reasonable doubt: That said Van Burén, the alleged robbed party, lived alone and had for several years in a one-room hut at the outer edge of the town of Brackett, about a half mile from the town, or hotel of appellant’s mother in said town. That in some way in the course of a number of years he had accumulated several hundred dollars in money which he carried in two purses on his person. In one was gold, in the other currency. Van Burén and appellant had both lived in Brackett for some 12 or 15 years. Van Burén was a white man about 70 years old, having, in his younger days, been a soldier. Appellant was a negro man who worked for his mother in the hotel she ran. Van Burén had known appellant for all these years and ever since he was a boy. On the evening of June 14, 1913, before the alleged robbery that night, Van Burén and appellant were in the saloon of Mr. Rivers, in Brackett. Van Bu-rén had, shortly prior thereto, ordered a pair of pants, and they had been sent to Rivers, the saloon keeper, for him. While in the saloon on this occasion Rivers told him that his pants had come, and to look at them, which Van Burén did, was pleased with them, and proposed to pay for them. Rivers informed him that the pants cost $4.50. Van Burén told him he did not have the change, but gave him a government check from the paymaster for $45, out of which Rivers took the $4.50 and delivered to Van Burén at the time $40 in gold in change — four $10 gold pieces — which he placed in the purse where he carried his gold. As stated, appellant was in the room at the time and doubtless saw and heard all this. Van Burén, after returning to his shack, removed his clout, in the pockets of which he kept his said money, threw it under his bunk, and proceeded to prepare and eat his supper. After eating, just before night, while sitting in his yard at his door, he swore appellant came up to him, accompanied by another negro man, whom he did not recognize at the time. That he did recognize appellant. That appellant asked him for a match, and he handed him a match. Appellant at the time had a “big stick, a big long stick, looks like a paling.” That after the robbery Van Burén found this stick in his house, and he identified it, and it was introduced in evidence on the trial. That as soon as he got the match he and his companion left, going in the direction of another house. That appellant, in some minutes thereafter, returned to Van Burén’s and asked him where a certain Mexican lived. Van Burén pointed out the Mexican’s house to him and gave him directions as to how to get there. Appellant then again left him. It seems he returned a second time and told him that the Mexican for whom he inquired was not at home, and Van Burén told him that he thought the Mexican was in town at a show or circus. That appellant again left him. That, after waiting around some time and attending to a call of nature, he prepared to go to bed. That, as he was at his door in the act or intending to go in he was grabbed by some one who was within his shack, jerked into his shack, knocked down, the door closed, when some large man got on top of him, jerked a blanket off of his bed and threw it over his head and face and held him down. That there was no light in the room, and with the door closed it was quite dark. That at the time he was dragged in and knocked down, while he knew there were two persons, he did not know who either was. That, while being held down by one of them, the other struck a match and attempted to light his lantern. That by the light of the match he saw and recognized the party with the match and lantern as Sam Jefferson, and that while, the match was lighted he managed to get the blanket from over his eyes so that he could see and did see that the man who was on him holding him down was the appellant. That Jefferson then procured the clout, took both purses of his money, and that the two then fled. That the blow which felled him stunned him. That as soon as they turned him loose and he could he got up, attempted to get his gun and find the parties. That he could not find his gun. That it turned out that they had also, taken the gun;' he finding the stock thereof in his yard the next morning and the barrels in the chaparral near the house. That the parties went out the door on one side, and, in attempting to pursue them, he ran out the other, and that, while he could hear them running and getting away, he could not apprehend them. That as soon as he got up he got his clout where they had thrown it on the floor and saw that they had robbed him of all his money, which, as stated, was about $70 in gold and the other in currency. The exact time of this alleged robbery was not fixed, though Van Burén testified, as we understand, that it was about or after 9 o’clock at night.

In the trial appellant insisted that the court should give a charge on circumstantial evidence, and asked such special charge in writing — his No. 3. It starts out with this statement, “You are instructed that in this case the state relies for a conviction on circumstantial evidence alone,” and then proceeds with such charge as is usually given when circumstantial evidence alone is relied upon. Instead of giving such charge as appellant requested and urged should be given, the court, in paragraph 10, charged the jury as follows:

“(10) If you believe from the evidence that the witness William Van Burén did not see defendant Will Terrell on the inside of his (Van Bu-ren’s) house at the time of the commission of the alleged offense, as testified to by said Van Burén, or if you have a reasonable doubt thereof, then you are charged that the state would rely and depend wholly upon circumstantial evidence to convict the defendant, and in this connection you are charged.”

He then followed this with paragraph 11, which would have been a correct charge, if circumstantial evidence alone had been introduced and the state had relied on that alone.

In addition to excepting to the court’s refusal to give his charge on circumstantial evidence, appellant excepted to that which the court did give, as follows:

“Defendant objects to that portion of paragraphs 10 and 11 of said charge wherein the court instructs the jury that the case of the state would depend upon circumstantial evidence alone only in the event that the jury believe from the evidence that William Van Burén did not see defendant, Will Terrell, on the inside of his (Van Buren’s) house at the time of the commission of the alleged offense, whereas the court should charge, upon circumstantial evidence, as is» requested in defendant’s special charge No. 3, and because said charge, as framed, is upon the weight of the evidence.”

Under the statute as it now is, this court, as well as the appellant, is bound by the objections made in the lower court at the time of the trial. Any additional objections that may be made in this or the lower court after the trial cannot be considered. So that we consider and pass upon the said objections made at the time.

There is and can be no doubt but that Van Burén, the state’s witness, in his direct examination, swore positively and unequivocally that he saw, knew, and identified appellant as the person who was in his house at the time he was robbed and was on him and held him down while appellant’s companion proceeded to actually get his money. He not only swore that, as stated, in his direct] examination, but in his cross-examination of him appellant had him to state again and again specifically, as in one instance: I

“It is true that I testified on direct examina-l tion that Bill Terrell (appellant) was the maul that held me down. Q. And that you saw himl by the match? A. Yes, I found out that he wasl the man that held me do'wn; yes, sir.” I

And at another time, in his cross-examina-l tion, he had him state: I

“I made the statement that there was a heav portly man sitting on top of me. I didn’t knov® who he was till the light showed him upB ⅜ * * Certainly, yes, I recognized him then.®

The appellant put said witness through A very lengthy, searching, and severe crosB examination, seeking by that, as contended bl appellant, to break down and discredit whaB he had so positively testified on direct amination; and to convince the jury and tri judge of the said -witness’ “willingness to swear to his beliefs and theories, vagaries, and imaginations as positive facts, not perhaps from a design to falsely testify, but because of the tendency of such minds to conceive as true that which is a mere impression or pure imagination.” As a part of said cross-examination, he would ask him over and over again if he did not testify on the examining trial, just a few days after the alleged robbery, to certain things which would tend to show that the witness did not identify the appellant at the time as one of the robbers, and, in impeachment of him, introduced the said several statements by appellant in his testimony on the examining trial. All this had more or less tendency to impair the said positive unequivocal testimony of Van Burén in his direct examination positively identifying appellant as1 the person who helped to rob him and who he said held him down while the other man got his money. Yet there can be no sort of doubt but that, taking all of the testimony, both direct and cross, the state’s case did not depend solely upon circumstantial evidence, and in our opinion no charge on circumstantial evidence should have been given. The trial judge ought to have refused outright appellant’s charge on that subject and should have given none himself, but should have submitted the case on this question on the theory of positive and not circumstantial evidence. It is evident to us from the court’s charge, and from this whole record, that the trial judge endeavored his utmost to be fair to the appellant and to give him the advantage of everything in his favor that he possibly could. Hence he gave said charge on circumstantial evidence preceded by said paragraph 10. We think there can be no question but that a charge on circumstantial evidence was in appellant’s favor and not against him. We also think that the said paragraph 10 was also in his favor and not against him. What the court said in said paragraph 10, we think, cannot be construed as on the weight of the evidence, but, if so, it was on the weight in favor of appellant- and not against him. As stated, there can be no shadow of doubt from this record but that said Van Burén on his direct examination did testify positively and unequivocally that appellant was on the inside of his house at the time he was robbed, and the whole drift of said cross-examination of him was to break him down on that point. So that the court in said paragraph 10 tells the jury “if you believe” (but did not tell them “if you believe beyond a reasonable doubt”) from the evidence that said Van Burén did not see appellant on the inside of his house at the time of the alleged robbery, “or if you have a reasonable doubt of it, then you are charged that the state would rely and depend wholly upon circumstantial evidence”; in every way by this charge charging in appellant’s favor and left the whole question to the jury, and did not charge on the weight of the evidence against appellant, but, if at all, in his favor.

Such being the ease, then what is the law applicable thereto? We think the law is settled against appellant, as shown by Judge White in section 807 of his Ann. O. O. P., which we quote as follows:

“Though there are decisions of this court holding that an erroneous charge, which inures to the benefit of the accused, if excepted to, constitutes, reversible error, a proper construction of articles 715, 716, and 723 (now articles 735, 736, and 743 by the Act of April 5,1913, p. 278) does not warrant such conclusion where the error excepted to is harmless or beneficial to the defendant. The contrary doctrine in Surrell v. State, 29 Tex. App. 321 [15 S. W. 816], White v. State, 28 Tex. App. 71 [12 S. W. 406], Jenkins v. State, 28 Tex. App. 86 [12 S. W. 411], and Habel v. State, 28 Tex. App. 58S [13 S. W. 1001], disapproved. Green v. State, 32 Tex. Or. R. 298 [22 S. W. 1094], A judgment of conviction will not be reversed for improper instructions given in favor of defendant. Wright v. State, 41 Tex. 246. On a trial for murder, where the evidence establishes murder in the first degree, defendant cannot be heard to complain that the court gave'him a change upon murder in the second degree. Briscoe v. State, 37 Tex. Cr. R. 464 [36 S. W. 281], A defendant who has been convicted of manslaughter cannot claim any possible injury from a charge on mutual combat, even if such charge be not required by the evidence, and a charge upon imperfect self-defense, though it may not have been called for by the evidence, can do no possible harm, where there is no self-defense in the case. Gonzales v. State, 35 Tex. Cr. R. 339 [33 S. W. 363, 60 Am. St. Rep. 51]. A specific portion Of the charge of the court may be erroneous; but, when it is more favorable to the accused than he was entitled to upon the particular questions indicated, the accused has no grounds to complain. Wilkins v. State, 35 Tex. Cr. R. 525 [34 S. W. 627]; Scruggs v. State, 35 Tex. Cr. R. 622 [34 S. W. 951]; Delgado v. State, 34 Tex. Cr. R. 157 |29 S. W. 1070; English v. State, 34 Tex. Cr. R. 190 [30 S. W. 233]; Daud v. State, 34 Tex. Cr. R. 460 [31 S. W. 376]; Loggins v. State, 32 Tex. Cr. R. 364 [24 S. W. 512]; Lujano v. State, 32 Tex. Cr. R. 414 [24 S. W. 97]; Boren v. State, 32 Tex. Cr. R. 637 [25 S. W. 775]; Green v. State, 32 Tex. Cr. R. 298 [22 S. W. 1094]; Kelley v. State, 31 Tex. Cr. R. 216 [20 S. W. 357]; Sutton v. State, 31 Tex. Cr. R. 297 [20 S. W. 564]; Massey v. State, 31 Tex. Cr. R. 371 [20 S. W. 758]; Wolfforth v. State, 31 Tex. Or. R. 387 [20 S. W. 741]; Gonzales v. State, 31 Tex. Cr. R. 508 [21 S. W. 253]; Weathersby v. State, 29 Tex. App. 278 [15 S. W. 823]; Surrell v. State, 29 Tex. App. 321 [15 S. W. 816]; Hawthorne v. State, 28 Tex. App. 212 [12 S. W. 603]; Walker v. State, 28 Tex. App. 503 [13 S. W. 860]; McOleavland v. State, 24 Tex. App. 202 [5 S. W. 664]; Carlisle v. State, 37 Tex. Cr. R. 108 [38 S. W. 991].”

In addition we cite Watson v. State, 28 Tex. App. 34, 12 S. W. 404; Jones v. State, 63 Tex. Cr. R. 394, 141 S. W. 953; Christian v. State, 71 Tex. Cr. R. 566, 161 S. W. 101; Coker v. State, 71 Tex. Cr. R. 504, 160 S. W, 368. It is needless to cite the many other cases to the same effect.

Appellant had some other objections to the court’s charge. We have examined them all. It is needless to state them. We think none of his objections are tenable.

The only other matter necessary to notice is shown by appellant’s tenth bill of exceptions. It is somewhat lengthy. We state the substance of it. It shows that his mother, Martha Terrell, upon direct examination, testified that on the night she afterwards learned the robbery charged in the indictment occurred, between 8 and 10 o’clock, appellant was at her hotel in company with her on the gallery, and that while there a soldier applied to her for lodging; that she sent the appellant with him to show him a room across the street kept by her for her patrons; that upon cross-examination the district attorney asked her if she had made any effort to procure the attendance of this soldier as a witness for her son. She answered that she had not; that she did not know the name of the soldier. Thereupon appellant offered in evidence an application made through his counsel for process to said county for one Corporal Stormer, describing him as a, corporal and a member of gun platoon, Fourteenth Cavalry United States Army, and his location at Pt. Clark, and also the subpoena issued for said witness on November 5, 1913, together with the return thereon showing the witness not to have been served. (This trial occurred in November, 1914.) Upon the objections of the district attorney to said application and subpoena on the ground that there was nothing to identify the man for whom the process was issued as the soldier testified about by Martha Terrell, the court excluded them. That, in the argument before the jury, the district attorney called attention to the fact as a circumstance that said soldier was not produced as a witness to corroborate the witness Terrell, appellant’s mother, and that, so far as the record showed, no effort was made to procure the attendance of that soldier as a witness. Whereupon appellant at the time again proposed to introduce in evidence said application and subpoena for said Corporal Stormer, which the court refused, to which appellant excepted. The court, in allowing this bill, did so, with this qualification and explanation:

“That I informed the defendant’s counsel at the time that I would permit the introduction of said testimony if testimony should be offered that the said Stormer was, or was supposed to be, the soldier who lodged at the Terrell Hotel on the night in question.”

Having accepted the bill with this qualification, it shows no error. Surely, if Stormer was not said soldier or supposed to be, the fact that more than a year before this trial a subpoena had been issued for him and not served would not have been admissible for any purpose, and the court correctly excluded it.

We have carefully considered the record in this case in connection with appellant’s able attorneys’ oral argument and strong brief in this case, but we have reached the conclusion that there is no reversible error shown, and therefore,.the judgment must be affirmed.

On Motion for Rehearing.

Appellant presents but one question'in his motion for rehearing. That is, he contends that'paragraph 10 of the court’s charge, quoted in the original opinion, is on the weight of the evidence, which entitles him to a reversal. He presents the question from his viewpoint in an unusually clear and forcible way. Among other cases he cites Stephens v. State, 10 Tex. App. 120, and Owens v. State, 39 Tex. Cr. R. 391, 46 S. W. 240, claiming the first is peculiarly parallel to this case. Besides these, he cites other cases on the general proposition that, where a charge is upon the weight of the evidence, it is error. We have carefully considered these cases and the question again and are still of the opinion that, while said charge No. 10 should not have been given, giving it does not present reversible error.

At the time (in 1881) when the Stephens Case was decided, our statute (article 735,, C. C. P.). prescribed:

* * * The judge shall deliver to the jury a written charge, in which he shall distinctly' set forth the law applicable to the case; but he shall not express any opinion as to the-weight of evidence. * * ⅞ ”

Article 736 was:

“It is beyond the province of a judge * * *- to discuss the facts or use any argument in his charge calculated to rouse the sympathy or excite the passion of a jury. It is his duty to state plainly the law of the case.”

Both of these articles, in the respects quoted, are precisely the same now as they were then.

Article 743 then was as follows:

“Whenever it appears * * * • that any of the requirements in the eight preceding articles have been disregarded, the judgment shall be reversed,” provided the “error” is “excepted to at the time of the trial.”

The language and -substance of that article, as it now is, is the reverse practically of what it then was, for it now is that whenever either or both of said articles 735 and 736 “have been disregarded, the judgment, shall not be reversed, unless the error appearing from the record was calculated to injure the rights of the defendant, or unless it appears from' the record that the defendant has not had a fair and impartial trial,” and objection must also now be made at the time of the trial like the original article required.

So that, as the statute stood when the Stephens Case was decided, it said “the judgment shall be reversed.” It now says it “shall not be reversed, unless,” etc. At first, when the said article 743 as it was before 1897, this court in several cases (Surrell v. State, 29 Tex. App. 321,15 S. W. 816; White v. State, 28 Tex. App. 71, 12 S. W. 406; Jenkins. v. State, 28 Tex. App. 86, 12 S. W. 411, and Habel v. State, 28 Tex. App. 588, 13 S. W. 1001, and others) held that, where said articles 735, 736, or either, had been disregarded if timely excepted to, this court had. to reverse, notwithstanding the disregarding of said articles by the judge’s charge was harmless to appellant or in his favor. Soon after the amendment of said article 743 by the act of March 12, 1897, was made, this court disapproved the doctrine held in said eases and specifically held in Green v. State, 32 Tex. Cr. R. 298, 22 S. W. 1094, that where said articles 735, 736, or either, had been disregarded, but the error by the court was harmless, or inured to the benefit of the accused, although excepted, to, no reversible error was presented. Since then this court has uniformly so held in many decisions unnecessary to collate. We cited and quoted Judge White on this subject in the original opinion.

The inhibition of article 735 is the “judge shall not express any opinion as to the weight of evidence.” And by article 736 he is inhibited “to discuss the facts or use any argument in his charge calculated to rouse the sympathy or excite the passion of the jury.” Appellant does not contend that the judge by giving charge No. 10 violated article 736, and he does not claim that the judge by that charge discussed the facts or used any argument in his charge calculated to rouse the sympathy or excite the passion of the jury. But he does claim that he violated article 735 in that he claims said charge, “as framed, is upon the weight of the evidence.” He did not “distinctly specify,” as the statute requires, how or wherein it was “upon the weight of the evidence.” Now, then, what did he tell the jury by this charge? He told them:

“If you believe (not that he believed or disbelieved) from the evidence that the witness William Van Burén did not see defendant on the inside of his (Van Buren’s) house, at the time of the commission of the alleged offense, as testified to by said Van Burén, or if you have a reasonable doubt thereof,” etc.

By this charge he neither expressly nor by implication told the jury that he believed said Van Buren’s testimony on this point. He left that exclusively for the jury. We think by no reasonable implication could the jury conclude that the judge believed Van Burén when he so testified. On the contrary, by implication the mere submission of the question to the jury would imply to them that he’ (the judge) did not believe Van Burén when he so testified. If the jury understood the judge to imply anything, it was that he (the judge) doubted the truthfulness of Van Buren’s testimony on this point; otherwise he would not, in any contingency, have given them a charge on circumstantial evidence. Suppose he had said to the jury in express language:

“I believe Van Burén is mistaken or testified falsely when he said appellant was in Ms bouse at the time he was robbed, but leave the question for you to decide.”

Clearly that would have been 'expressing his opinion of the testimony, but in appellant’s favor and not against him. In effect that is what he did tell the jury. This would give the state cause to complain, but not appellant.

But let us consider the Stephens Case, supra, which appellant claims is so directly in point in his favor. In that case the purported confessions were testified to by a witness whose character and reputation for truth and veracity were assailed by two witnesses and other facts. The judge charged:

“The confessions of the defendant are in evidence before you, and if, in your best judgment, you shall give no credit to the witness who professed to detail them, you will then look to the other testimony in the case, and apply to it the rules relating to circumstantial testimony.”

If the judge in his charge had stopped there, Judge White doubtless would have held that no error was committed, but he did not stop there. He went further and said as a continuation of the quotation just above:

“If you give credence to the witness who professed to detail the confessions, you need not apply to the evidence those rules as to circumstantial testimony.”

It is this latter part which in that case resulted in reversal; Judge White stating specifically the reasons as follows:

“It was in effect, if not in fact, tantamount to telling- the jury: ‘If you believe the testimony of the witness who has testified to defendant’s confessions, then you will not look to or consider the other evidence in the ease.’ This was, in the contingency mentioned, depriving the defendant of the benefit of any testimony offered by him, by requiring the jury not to look to or consider it.”

In this ease the court did not charge this latter part or anything like it, but instead:

“If you believe from the evidence that the witness Van Burén did not see defendant Will Terrell on the inside' of his (Van Buren’s) house at the time of the commission of the alleged offense, as testified to by said Van Burén, or if you have a reasonable doubt of it, then you are charged that the state would rely and depend wholly upon circumstantial evidence to convict the defendant, and in this connection you are charged ”

—then proceeded to give them a correct charge on circumstantial testimony. The judge in this case did not, as the judge in the Stephens Case did, tell the jury that, if they believed Van Burén, they need not apply to the evidence the rules as to circumstantial testimony, which makes quite a different thing. If the judge-in this case had told the jury as Judge White said was done in the Stephens Case:

“If you believe the testimony of Van Burén, when he testified he saw Will Terrell in his house, when he was robbed, then you will not look to nor consider the other evidence in the case”

—then this case would have been parallel to the Stephens Case.

A careful analysis of the Owens Case, supra, will show that there is an equally as marked difference between that and this case as we have shown exists between this and the Stephens Case.

Besides, it is elementary that the whole charge is to be considered when any_ particular paragraph of it, is attacked. Christian v. State, 71 Tex. Cr. R. 566, 161 S. W. 104.

Now the judge in this case correctly told the jury the law of robbery, and required the jury “to believe from the evidence (which means all the evidence), beyond a reasonable doubt,” every essential fact necessary to show that appellant was guilty of the offense charged in this case before they were authorized to convict, and only when they so believed this from all the evidence could they convict him. In addition, he charged alibi in appellant’s favor; further that the burden of proof was upon the state; that the defendant was presumed to be innocent until his guilt was established beyond a reasonable doubt, and, in ease “you have a reasonable doubt as to his guilt, you will acquit him,” and further told them they were the exclusive judges of the facts proved, of the credibility of the witnesses, and of the weight to be given to their testimony. So that we still think charge No. 10 was not upon the weight of the evidence, but, if so, that it was upon it in appellant’s favor and not against him; and further that in no event does it present reversible error taken in‘connection with the whole charge of the court.

The motion is overruled. 
      @=oFor other eases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes
     
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