assertion of ownership by him, and must be un-able doubt of it, then they should acquit. accompanied by any reasonable explanation by No jury could be misled by such a charge, the defendant of such possession; and, if the and an intelligent jury would readily comproperty of Payne Bros., as described' in the indictment, was stolen, and the defendant was prehend such a charge. If appellant bought found in possession of same recently after the the property, or obtained it from another theft, if, when such possession by him was first party, and was not connected with the origicalled in question, he gave an explanation of such possession that was natural, reasonable, nal taking, of course, he would not be guilty and probably true, it then devolves upon the of theft, even though he might have receivstate to show that such explanation was false, ed stolen property knowing it to have been and, if the state fails to show same to be false beyond a reasonable doubt, the defendant must stolen. So a pertinent application of the be acquitted, and you will so say by your ver- law to the facts that he did so receive it dict." from the other party after it was stolen would be sufficient, whether he was guilty of receiving it, or whether he bought it in good faith, or whether he bought it at all in any faith. The proposition is that he was not connected with the original taking. If not connected with the original taking in a guilty manner, he could not be guilty of theft, and this would be true whether he received the stolen property, knowing it to have been stolen, or whether he acquired it innocently after such knowledge. The accused citizen must be tried under the allegations of the indictment, and not on some other statement of fact not in accord with and supporting the allegations of the indictment.

This was refused. The court gave a charge on circumstantial evidence, to which no objection was urged, and also gave the following special charge at the request of appellant:

"That, although the stolen property was found in the possession of the defendant, that fact would not be sufficient to convict him, and that the defendant had a right to give a reasonable explanation of how he came in possession of the said stolen property. Therefore, if you find from the evidence that defendant gave a reasonable explanation for his possession of the stolen property, you will acquit the defendant, and so say by your verdict."

He also gave the following charge at the request of appellant:

"You are instructed that, if you find from the evidence beyond a reasonable doubt that the property alleged to have been stolen was taken from the owner without his knowledge or consent, and you further find from the evidence that the defendant or Frank Bay took said property, but have a reasonable doubt whether the defendant or Frank Bay took same, you will acquit the defendant, and say by your verdict not guilty."

We think these charges sufficiently presented this issue to the jury. Appellant's explanation did not specify from whom he obtained the goods, but his statement was that he got it from a kid at Zulch. This court, in quite a number of decisions, has approved the form of special charge given by the court at appellant's request, instead of the lengthy one refused by the court. It

has been held, however, that such matters can be presented by such a charge as requested by appellant and refused by the court, but it has also been held that, where the charge given more pertinently and directly presents the question, it is sufficient without giving the other, and in fact the briefer, shorter, and more terse charge has been approved, as being correct and less confusing, or as being less calculated to confuse the jury with reference to the law of such a state of case. We are still of the opinion that the safer and better way to present the question to the jury is by applying pertinently the law to the identical explanation given by the accused where that is an issue. If he says he bought the property from some one, it would be sufficient to say to the jury, if they should believe that appellant obtained the property as he stated he did, either by purchase or trade, or whatever the explanation may be, or if they had a reason

Finding no reversible error in the record, the judgment is affirmed.

GOLSON V. STATE. (No. 3731.)
(Court of Criminal Appeals of Texas. Oct. 20,
1915.)

CRIMINAL LAW 260-APPEAL FROM JUSTICE
-FINAL JUDGMENT.

Where, on a complaint charging accused
with boarding a freight train with intent to ob-
tain a free ride and without lawful business
thereon or the consent of the conductor, he was
convicted in justice court and a fine imposed,
there was a final judgment, warranting appeal
to and trial de novo the county court.
Law, Cent. Dig. §§ 567-609; Dec. Dig. 260.]
[Ed. Note. For other cases, see Criminal

Appeal from Henderson County Court; C. D. Owen, Judge.

L. E. Golson, being convicted in justice court of crime, appealed to the county court, and from a judgment of dismissal, he again appeals. Reversed and remanded.

Miller & Miller, of Athens, for appellant. C. C. McDonald, Asst. Atty. Gen., for the State.

DAVIDSON, J. This case arose in the justice court, and the conviction there occurred, and a fine of $5 imposed and all costs of court.

The complaint charged the defendant with boarding a freight train on the track of the St. Louis & Southwestern Railway Company, with intent to obtain a free ride, and without any lawful business thereon, and without the consent of the conductor in charge of said train. Motion was made in the county court

(Court of Criminal Appeals of Texas. Oct. 20, contest is not at first sworn to, since it cannot

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

Where, in a prosecution for murder, the court's charge embraced every proper question of self-defense, instructions on the same question requested by the defendant were properly refused.

[Ed. Note.-For other cases, see Criminal Law, Cent. Dig. § 2011; Dec. Dig. 829.] Appeal from District Court, Freestone County; A. M. Blackmon, Judge.

Floyd Thompson was convicted of murder, and he appeals. Affirmed.

Homer L. Baughman, of Ft. Worth, for appellant. C. C. McDonald, Asst. Atty. Gen., for the State.

PRENDERGAST, P. J. Appellant was convicted of murder, and the death penalty assessed. It is unnecessary to give but a brief statement of what the evidence, with certainty, establishes.

6. CRIMINAL LAW 829-TRIAL - INSTRUC- | him a big six-shooter. Between there and TIONS-REQUESTS-SELF-DEFENSE. his father's he had left at a neighbor's a shotgun. In going to where the horse was he took this six-shooter along with him, and also went by and got his shotgun, and took that too. When Casey reached his father's to get the horse, he found his father and his father's wife at the house, told them his mission, and his father went with him in search of the horse wholly unarmed. The testimony clearly justified the jury to believe that appellant, knowing Casey would hunt for the horse in his father's premises, would not find him there, but would find him in a pasture of another near by, secreted himself in an old, abandoned, vacant house, and, when Casey got in shooting distance of him, fired upon and killed him without Casey knowing he was there or intended any such act. Casey was on his horse when he was shot. Appellant shot at him twice at the time in Appellant was a young negro man just quick succession. Casey's horse ran some disHe made his home with his tance when Casey was shot before he fell father, who was a farmer and lived on a from the horse. The testimony also clearly farm several miles in a southeastern direc- authorized the jury to believe and find that, tion from Fairfield, the county seat of Free- when Casey fell off his horse dead, appelstone county. Appellant seemed to have no lant in a few minutes went up to where his special business, had no crop to work, or at body was and fired two other shots with a least did not work any of his own. He seem- shotgun in Casey's body, thereby shooting ed to have worked around in the neighbor-off practically the whole of his face and all hood, hunted a good deal, and loitered around of his teeth out, and, as some of the witgenerally. Deceased, J. I. Casey, lived at nesses said, nearly shooting his head off. Fairfield. Some time before the killing he He then carried the body across a fence into and appellant swapped horses, whereby ap- a pasture where there was a considerable pellant became indebted to deceased for $55, pool of water. He tied a rope around the and to secure it gave deceased a mortgage on neck of deceased and around the horn of the the horse he at that time got from deceased saddle on the horse of deceased, and dragged and other property, including a crop which the body some distance to this pool of wahe claimed he was to raise during 1914. Just ter, and then dumped the body into the pool, before the killing, which occurred on Sunday where the body sank out of sight. He then May 24, 1914, Casey ascertained appellant hid both his pistol and shotgun in the woods had no crop and was not working any that near where the killing occurred, where they belonged to him. He thereupon on said were both found by the state's witnesses and date rode horseback down to see appellant, officers, identified and introduced in evidence and did see him. He did not find him at his on the trial of the cause. Where all these father's, but at another place a few miles things occurred was a somewhat secluded from his father's. The evidence clearly jus- place and in the woods. In these woods at tified the jury to believe that Casey, a few the time appellant tied and secreted dedays before, had endeavored to get appellant ceased's horse, and kept him there until to deliver said horse to him in satisfaction some time that night, when he got on him of the debt, which appellant refused out- and rode him several miles in an attempt right to do. When Casey found him on that to escape, and then turned the horse loose, Sunday morning, he induced him to agree to where he was found by a neighbor the next surrender the horse to Casey in satisfaction morning. Appellant fled and evaded arrest, of his debt and mortgage. The horse at the although diligent search was made for him, time was either at appellant's father's home until perhaps about the 1st of January folin the pasture or in another pasture at or ad- lowing when he was found at Ft. Worth, joining his father's. When appellant and going under an assumed name, arrested, Casey separated, Casey was horseback, and identified, and taken back to Freestone counhad to ride around circuitous roads several ty, where this trial occurred. miles to reach appellant's father's, which he When Casey did not return home that Sundid, to get the horse. Appellant, however, day night his wife became uneasy, and notibeing afoot, could cut across the fields and fied the officers and friends of her fear that country, and did do so, and reach where the he had been foully dealt with. The officers horse was, traveling not so far, which he did. and citizens in the community near where At the house where he stayed the night be- the killing occurred, of course, became arousfore, where Casey found him, he had with ed, and, in different bodies, began searching

Ap

later each of the jurors who were absent
when their names were called were produc-
ed and passed upon in the usual way; that
the defendant exhausted but 12 of his 15
peremptory challenges. As held in all the
cases, unnecessary to collate, the court's ac-
tion was correct and presented no
no error
whatever.

for Casey, but did not find his body until | answer when their names were called. some time Monday. When Casey left home pellant, in effect, thereupon objected to prohe had $30 or $40. When his body was ceeding further until these absent venirefound his pockets had been turned inside out, men were produced in the order in which and no money could be found. The neighbors their names appeared on the list. The court, and officers then began a search over the in approving appellant's bill on this subject, whole community for appellant, but did not stated that in each instance the court orfind him. Among other negroes, they arrest-dered an attachment for the juror, and that ed his father and confined him and them in jail for awhile. It seems after an investigation they turned him and all the others out, and became satisfied that appellant was the guilty party. Still later his father was killed. On the trial appellant claimed that he first shot Casey or at him twice in self-defense, and that his father, not he, afterwards went to the body of Casey where it had fallen and shot the shotgun into his body, with the result as described, and that his father, and not he, dragged the body and put it in the pool of water. His claimed self-defense was submitted by the court's charge in the most favorable light to him, and the jury found against him, as they unquestionably should state also clearly disproved that his father to prove venue. Besides, one witness swore shot the last two shots into the body of de- positively the killing occurred in Freestone ceased, and that his father dragged the body and put it in the pool, but, on the contrary, established with certainty that he, and not his father, did this. He fled the country; his father did not. Appellant, as stated, was arrested about January 1, 1915, taken back to Fairfield, placed in jail, and kept there

have done under the circumstances. The

until his trial occurred on April 22, 1915.

[1] When the case was called for trial appellant made a motion to change the venue. When this was presented, the state asked for time to file a contest, which the court allowed. It seems the contest was not at first sworn to. When this was shown, the state again asked the court for time to do this, which the court granted. There was no error in the court's action, and no possible injury to appellant is shown by his action. Paw v. State, 33 Tex. Cr. k. 24, 24 S. W. 293. [2] The court then heard the testimony on his said motion. He introduced but a few witnesses. Only one of the witnesses on this hearing testified that, in his opinion, appellant could not get a fair and impartial trial; while another one of his witnesses as distinctly swore the reverse. The state introduced more than a dozen witnesses, all of whom testified the reverse of appellant's contention. There can be no question but that the state proved the reverse of appellant's contention, and the judge, under the evidence, without doubt, correctly overruled his motion for a change of venue and all the questions incident thereto.

[3] During the progress of impaneling the jury several veniremen failed to appear and

[4] When the state closed its evidence in chief, appellant made a motion for an instructed acquittal, because the state had not proved venue. The bill in no way states what this evidence was, and is wholly insufficient on that account to present any error. However, the evidence as a whole, without any question, was clearly sufficient

county.

after the jury had been duly organized and [5] Appellant also made a motion, it seems the trial proceeded with, to discharge the jurors and jury because he claimed that one of them was not a qualified juror. The court heard evidence on this subject and overruled

his motion. What that evidence was is in

no way disclosed by the record. Doubtless,
if it had been, it would have clearly required
We must
the court to overrule the motion.
presume, under the law, that the court's ac-
tion was correct.

[6] Appellant requested several special charges on the subject of his claimed selfdefense. The court correctly refused to give any of them because, as stated by the judge, his main charge embraced every question on the subject which was necessary or proper for the court to give. We think it entirely unnecessary to copy any of his special charges or that of the court, for, as stated above, the court submitted his claimed self-defense in a most favorable light to him on every point which the evidence would have authorized or suggested.

This being a death penalty case, we have given the record, the statement of facts, and appellant's brief thorough consideration. We think the evidence establishes without any sort of doubt appellant's guilt; that the case was in every way fairly and carefully tried without any error against him having been committed.

It is therefore our duty to affirm the case, which we do.

L

[Ed. Note. For other cases, see Criminal Law, Cent. Dig. §§ 2691-2699; Dec. Dig. new trial should have been granted, since all 1069.]

Appeal from District Court, Hunt Coun- new trial for newly discovered evidence he ty; Wm. Pierson, Judge. appeals. Reversed.

C. C. McDonald, Asst. Atty. Gen., for the Vernon, and C. E. Sheppard, of Sulphur State.

(Court of Criminal Appeals of Texas. Oct. 13, to testify, and erred in refusing to grant a