Hampton v. State

136 S.W.2d 820, 138 Tex. Crim. 408, 1939 Tex. Crim. App. LEXIS 657

• Court: Court of Criminal Appeals of Texas
• Decided: November 8, 1939
• Docket: No. 20566.
• Status: Published

Opinions

KRUEGER, Judge.

The offense is theft of an antomobile. The punishment assessed is confinement in the state penitentiary for a term of ten years.

It was averred in the indictment that on April 2, 1935, appellant had been convicted in the Criminal District Court Number 2 of Dallas County in Cause No. 6307 of a felony of like character, to-wit: Theft of property over the value of $50. Upon the trial of this case the judgment of conviction in cause number 6307 was offered in evidence and appellant identified as the same person convicted in said cause.

Appellant’s first contention is that the trial court erred in declining to sustain his motion for an instruction to the jury to return a verdict of not guilty on the ground that the evidence was insufficient to warrant his conviction. The State’s evidence shows' that on the night of September 10, 1938, someone stole an automobile belonging to H. G. Dollar while it was parked on 10th Street in the City of Fort Worth. Mr. Dollar, who was a city policeman, missed his car a short time before midnight and immediately reported it to headquarters. Messrs. Lockhart and McQueen, two city policeman, received information of the theft by radio. At the time they were on Highway 34 going toward Mansfield. They immediately started back to the city. When they reached Riverside Drive, they saw two small boys forced to jump up on the curb to avoid being hit by a swerving automobile. The car hit the curb, bounced back and then started down the street. The officers pursued the car which increased its speed, finally reaching a speed of about 70 miles per hour. After the car had entered Wichita Street, the party driving it tried to make a right hand turn onto a dirt road, but the car failed to make the turn and hit a ditch, ran into a wire fence and pulled down about 150 feet of it. The party, whom the officers identified as the appellant, jumped from the car and ran into a field of sunflowers. About an hour later a motorcycle officer who saw the party run into the field, arrested appellant about a mile from the scene of the wreck. Appellant’s trousers were torn into shreds, his body scratched and cut, and he was bleeding. He explained his condition by stating that he had been in a fight, but did not say when or where. He told the officer that his name was Charley Clark. Appellant did not testify but "his father and sister testified that they knew appellant did not wear light trousers as testified to by the officers, but wore a pair of brown trousers. The car was sufficiently identified as the one stolen from Mr. Dollar.

Appellant addressed a number of objections to the court’s charge. His main objections are (1) that the court failed to instruct the jury relative to the law of an alibi and (2) that the court failed to instruct the jury relative to an exculpatory statement when apprehended. It is our opinion that the issue of alibi was not raised by the evidence; hence no instruction thereon was required. Nor is there in evidence such an exculpatory statement as would require an instruction thereon to the jury. The mere fact that appellant said he had been in a fight when questioned about the condition of his clothes would not raise the issue of alibi as he might have been in a fight several hours before he committed the theft. Nor was his statement exculpatory of the offense. It might be conceded that he had had a fight and that during the encounter his clothes were torn before he committed the offense; but this would not entitle him to an instruction that • if his clothes were tom while he was engaged in a fight to acquit him. Before such an instruction would be justified there would need to be evidence showing that at the time of the theft he was engaged in a fight. The statement did not exclude the idea of his presence at the time and place of the commission of the offense charged. See Parker v. State, 40 Tex. Crim. Rep., 119, 49 S. W., 80; Woods v. State, 80 Tex. Crim. Rep., 73, 188 S. W., 980 and authorities cited.

Bill number three complaining of the court’s action in overruling his second application for a continuance is without merit. The trial judge has qualified the bill by stating that this was a second continuance and that the cause had once before been continued because of the absence of' counsel for defendant. Moreover, it is our opinion that the appellant has not shown that degree of diligence which the law requires. The indictment was returned against him on September 24, 1938, but it appears from his motion that it was March 10, 1939, before he ever caused a subpoena to be issued for the absent witness. He states that he did not learn of the return of said subpoena until the morning of the trial on March 22. The record fails to disclose when the subpoena was returned. It might have been returned on the 12th of March. If it. was and appellant made no further effort to locate the witness and have other process issued, then he was also negligent in this respect. And while appellant states- in his motion that “said subpoena is attached hereto and along with the application is made a part of this motion and shows that the said witness was not served by the Sheriff of Dallas County” we are unable to find the same in this record. Under these circumstances, we do not think he has shown that degree of diligence required by law. See 9 Tex. Juris., p. 785, Sec. 100 et seq.

■ After a most careful review -of- all the matters -complained of we have reached the conclusion that no reversible error was committed. Therefore the judgment is affirmed.

The foregoing opinion of the Commission of Appeals has been examined by the Judges of the Court of Criminal Appeals and approved by the Court.