The opinion
ON MOTION FOR REHEARING.
LATTIMORE, JUDGE.
It is urged in the motion for rehearing that we were wrong in holding it not reversibly erroneous to refuse to charge on alibi. Appellant did not testify, nor by affirmative testimony of any witness locate himself at another and different place when the killing was done. He lived a few miles from Handley, and close to the home of one Stevens. The State’s theory was that the killing was at or near appellant’s place. To travel from Handley to said place in a car going approximately twenty miles per hour would take some ten minutes. If faster, — less. No one undertook to fix the exact time of the killing. Miss Works said she and Miss Hargrove went outside of Mr. Winn’s house where they were that night, and while out in the yard heard the shooting up toward appellant’s house. Asked if she could fix the approximate time of the shooting, she said that before they went out of the'house Mr. Wright looked at his watch and it was 10:30. She was not asked how long they stayed outside, nor how long after they went out until they heard the shooting, nor how long after Mr. Wright looked at his watch before they went outside. Mr. Bush testified that he went to Winn’s house about 9 p. m. He was sick and did not go into the house but stayed out in his car until past midnight. He heard the shooting. He said “No, I don’t have any way of fixing the time, except guessing at it.” On cross-examination he said: “I don’t know how long I was down there before I heard those shots, three or three and a half hours, something like that. No, it was earlier than 12:00 or 12:30. I got there at nine, — it would be about 11:00 or 11:30. Somewhere around there.” This witness said that a truck came down the lane from the direction of appellant’s house, and on
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cross-examination he said that this truck came about half or three-quarters of an hour after he heard the shots. “Something like 11:30.” These are the witnesses, and this the testimony as to the time of the killing.
The alibi testimony is set out in our original opinion. Mr. Gaddis swore that his best judgment was that he and appellant met at Carr’s place about 8:30, and after saying that he couldn’t say what time appellant left, — he testified “I judge it must have been something like an hour and a half or two hours from the time he drove up there until he left.” Carr testified that appellant was at his place an hour and a half or more, — that appellant left his place about 9:30 or 10:00 o’clock. Giving to the testimony of Carr full credence, appellant could have been at the scene of the killing by 9:45 or 10:00, driving around twenty miles per hour. Gaddis admitted that his was but a guess, but under his testimony, and driving at the same rate appellant could have been at his home by 10:15 or 10:45 that night.
Nothing in the testimony herein locates appellant from the times mentioned until he came down to Winn’s house that night about fifteen or twenty minutes before 12:00 o’clock, according to Roy Works’ testimony, to get the lights on his coupe fixed. According to Bush, the truck referred to came down from the direction of appellant’s house fifteen or twenty minutes before appellant came down from the same direction without lights on his coupe.
In Underwood v. State, 55 Texas Crim. Rep., 601 , discussing when a charge on alibi should and need not be given, Judge Ramsey used the following language: “We believe that the true distinction is laid down in the case of Parker v. State, 40 Texas Crim. Rep., 119 , 49 S. W., Rep. 80, where it is held, in effect, that unless the testimony fails to exclude the idea of his presence at the homicide a charge upon the subject of alibi need not be given. In no case should a cause be reversed for the refusal of such a charge unless in the light of all the testimony the evidence excludes the theory of appellant’s presence at the place of the crime.”
This is expressly quoted and approved in Woods v. State, 80 Texas Crim. Rep., 74 , citing Parker v. State, 40 Texas Crim. Rep., 119 ; Hernandez v. State, 64 Texas Crim. Rep., 73 ; Myers v. State, 65 Texas Crim. Rep., 448 . This language is also approved in Basham v. State, 118 Texas Crim. Rep., 33 , wherein we said, in substance, as in our original opinion: “We do not understand that appellant’s testimony as to his whereabouts is
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inconsistent with the State’s theory that he was present at the commission of the offense.” In the case of Broz v. State, 93 Texas Crim. Rep., 140 , discussing the failure of the court to charge on alibi, we said: “The law deals with substance, not with shadows, and, in order to entitle him to demand a charge presenting an issue, he must show facts to the court which substantially support the theory that, if his personal presence was not shown, he could not be guilty.”
In this connection, our attention is attracted by the language of the charge in the instant case which instructs the jury in one paragraph that if they believe from the evidence beyond a reasonable doubt that appellant did kill Jack Sturdivant by shooting him with a gun, etc., to find him guilty; and again in another part of the charge submitting the case on the law of circumstantial evidence the court told the jury that the circumstances must be of a conclusive nature, producing in effect a reasonable and moral certainty that the accused committed the offense, and that same are not sufficient unless they exclude, to a moral certainty, every other reasonable hypothesis except the defendant’s guilt. Again, in charging on the law of principals, the court told the jury in effect that even though the killing be done by another or others, if appellant was present, and knowing the unlawful intent of such other or others, aided by acts or encouraged by words or gestures the preson doing the killing, he would be guilty. In others words, while we recognize that the taking of an exception to the charge for its failure to submit the issue of alibi, as was done in this case, is sufficient to present the point, we are still of the opinion that under the facts of this case the failure to charge on alibi was not error.
We have examined with interest the cases cited in appellant’s motion. In Arismendis v. State, 60 S. W., 47 , appears the statement that the defense of alibi was the only one interposed in behalf of the accused, and that his testimony “Denies his presence and possession, and other evidence shows or tends to show that he was at a certain point in the city of Brownsville at the time.” Certainly in such case a charge on alibi should have been given. In Sapp v. State, 77 S. W., 456 , we find the case reversed for other reasons, but this court suggests that upon another trial it might be well to give a charge on alibi. It is not stated what the alibi evidence was. In Freeman v. State, 239 S. W., 969 , there was positive testimony supporting the alibi relied on, and we said we could not see why the court did not submit the issue. When a witness or witnesses swear positively to an alibi, or to such state of facts as if true
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are inconsistent with the presence of the accused at the place of the crime, the rule relegating to the jury and not the court the duty of passing on the weight of the evidence, has application.
The able efforts of appellant’s counsel reflected by their brief, motion for rehearing and citation of cases from other jurisdictions, are most commendable. We are cited to Turner v. Commonwealth, 86 Pa. St., 54. In that case however a charge on alibi was given which the appellate court held bad. We agree. The trial court told the jury: “An alibi is a perfect defense when it is fully, clearly and satisfactorily established, but the burden is upon the person asserting it, to establish it.” Other parts of the charge were assailed. Referring to the above, the appellate court said: “As an abstract proposition, the first part of this instruction might be regarded as correct, for, * * * as is said in Briceland v. Com., 24 P. F. Smith 463, per Agnew, J., when a defense rests upon proof of alibi, it must cover the time when the offense is shown to have been committed, so as to preclude the possibility of the prisoner’s presence at the place of murder. It thus necessarily follows, that if the evidence on this point is imperfect, it comes to nothing.”
We think this case against appellant’s contention. We are also referred to West v. State, 48 Ind., 483 , another case in which a charge on alibi was given, which the upper court held incorrect. In that case it was in testimony that the alleged crime was committed on a certain night, but no exact time was fixed therefor. The court held, in effect, that a charge that proof of alibi would have to cover the whole night, was good, but that so worded as to tell the jury that they must determine whether it was actually and physically impossible for the accused to be at both places, i. e. the place where he said he was, and the place of the murder, — was bad. That the use of the word “Impossible” was going too strong. The facts in the case are stated meagerly in the opinion. In Kaufman v. State, 49 Ind., 248 , also cited by appellant, the testimony strongly supported an alibi, but left part of the night of the theft during which witness was asleep uncovered by testimony. The trial court gave a charge similar to that in the West case, supra, and the Supreme Court held it bad. Adams v. State, 10 So. Rep., 106 , by the Supreme Court of Florida, is also cited; and a charge like that in the West case, supra, was there held bad, the court concluding that, while the alibi evidence might not show it impossible for the accused to have been at the scene of the crime,
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same might have been enough to raise a reasonable doubt of his presence there.
Appellant urges that we misapprehended his contention in regard to proof made by the State as to the acts of O. D. Stevens prior to the alleged homicide. By exceptions to the court’s charge complaint was made of the failure of said charge to tell the jury that acts and declarations of Stevens, not in the presence and hearing of appellant, could not be considered unless the jury found beyond a reasonable doubt that there was a conspiracy between appellant and Stevens to kill the deceased. Appellant also made a motion, which was presented in the form of a special charge, asking that the court strike out and instruct the jury not to consider “all the testimony pertaining to any acts or declarations” of said Stevens outside the presence and hearing of appellant, which was refused.
Much of appellant’s motion for rehearing is devoted to claimed error in this regard. Appellant’s bill of exceptions No. 1 sets out the refusal of said motion or special charge. We see no error in such refusal. In the ordinary development of a case such as this the names and acts of many different persons might appear, and it must be at once apparent that unless there be some legal reason therefor, no necessity would exist for such instruction. We have scrutinized again the record in the light of appellant’s motion.
Granting that the record suggests that more than one person was implicated in the killing; that each of three men killed at apparently the same time, was shot with a different weapon; and that other facts in evidence were deemed sufficient to call for a charge on principals, — we would still be of opinion that unless the acts of Stevens, referred to in testimony, could be held in some way hurtful to the cause of appellant, there was no error in refusing said motion. In his motion appellant seems to concede that if the testimony had shown that the three men slain played dominoes with Smith, Brown or Jones in. Handley that afternoon, the mention of such parties names in testimony might not have called for such charge, but because they were said to have played with Stevens, such charge should have been given. Likewise that if when Smith, Brown or Jones, who lived near appellant, got in their cars and started home, and the other parties got in their cars and followed, this would have called for no such charge. No declaration of Stevens was in evidence, as appears in the cases cited in the brief of appellant. Parties can be convicted as principals in criminal cases without testimony of conspiracy. There are facts, as above stated, in
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this record which indicate an acting together of more than one person in this killing, which occurred in the vicinity of appellant’s home and that of Stevens. The wire around the clothes and the bodies was said to be the same kind as that with which fences were built on both appellant and Stevens’ places; the stone with which the clothes were weighted was similar to the stone on each of said places. The sound of the shooting that night came from the general direction of the May and Stevens’ homes, but testimony of the use of Stevens name in such connection would seem not to add any criminating weight to the proof against this appellant. True, Routt said that he had a conversation with Stevens about the mail robbery in February, 1933, but said not one word about what was said in the conversation. Probably conversations were had between every citizen of Fort Worth and some other person about the same occurrence. How this could have injured appellant under this record is not perceived. Appellant admitted to Routt that he was implicated in said robbery, but said nothing of Stevens being in the same boat. The killing took place near appellant’s house; he had told a witness that he might have to kill the parties who were slain; his truck was bloody the next day; wire like that on his fence was around the bodies and clothes; rocks like those on his place weighted down the garments; he came down the lane from the direction of his house that night soon after his truck passed about midnight; he was seen early the next morning in said car on said road; the burned cushion of his truck was discovered the day after the alleged homicide on his place.
If the State had not shown that wire like that on both places was around the bodies and garments, but that such wire was only like that on the fence of appellant, it would have been perfectly competent defensive testimony to prove that similar wire was on Stevens’ fence. Likewise as to the rocks found with the garments. Appellant cites the case of Benavides v. State, 60 S. W. (2d) 436 , in which the State proved that a party claimed to be an accomplice had said that the accused hired him to commit the crime. This was held inadmissible, and several cases cited in which reversals were ordered because efforts were shown to prove conspiracies by the declarations and acts of other parties when the accused was not present, with which cases on their facts we are in accord, but fail to see any application of either those authorities or that of Benavides v. State, supra.
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Not being able to agree with appellant’s contentions, the motion for rehearing is overruled.
Overruled.