Appellant urges that he was entitled to a charge on reasonable explanation of recently stolen property. There was no explanation made by appellant when the alleged stolen property was found in his possession in August, 1923, hence no need for such charge. Cleveland v. State, 57 Tex. Crim. 356. We might further call attention to the well-settled holding that only in a case where recent possession alone is relied on as a circumstance sufficient to justify the jury's conclusion of guilt is it necessary to give any such charge, and then only when such explanation is given when the right of such possession is first called in question. Robinson v. State, 22 Tex.Crim. App. 690; Roberts v. State, 17 Tex.Crim. App. 82; Boyd v. State, 24 Tex.Crim. App. 570; Leeray v. State,92 Tex. Crim. 293. We might also refer to the fact that when a full charge on circumstantial evidence is given, it is not necessary to give a charge specially on the question of recent possession. Bonners v. State, 35 S.W. 650.
Appellant again insists upon the lack of testimony. We recapitulate. Mr. Parker moved with his family to Lubbock County in February, 1923. He brought a large quantity of preserves, sweet pickles, berries, etc., in fruit jars, which he placed in a barn and fastened same up. On March 20 following, said barn was burglarized and the preserves, etc., stolen. Appellant had been twice to Parker's place before the burglary, once on February 6 and again three or four weeks afterward. He was at the place something like an hour on the second visit, making no explanation of his purpose save that he wanted a drink of water. He knew that the Parkers had the preserves, etc. A daughter of Mr. Parker testified that she stated in appellant's presence that her father had about 225 jars of fruit at said place. Appellant owned a Ford car. Examination of the same the third day after the burglary revealed that its left front casing was a new non-skid, rough tread, 30x3; its right front casing was an almost smooth 30x3, and its two rear casings were 30x3 1/2 worn smooth. A car with casings on each wheel corresponding to the above was driven to a point between one hundred and two hundred yards from Parker's barn on the night of March 20. Tracks of three persons went back and forth *Page 613 from where the car stopped to said barn. The ground showed where boxes were dragged between the barn and where the car stood. Where the car turned the tracks of each of the casings were observed separate and plain. Not far away the car ran into a wire fence and part of the way under some of the wire. The left front part of the car struck a post. The soil was sandy. Dark stains were observed on the ground where the car had been. When the officers got to appellant's place, after observing the casings on appellant's car and their correspondence with the tracks above mentioned, it was further observed that the left front fender was bent and had a number of fresh scratches on it. Dark stains were seen on the floor boards of the car. One of the officers got under it and said dark stains were on some part of the car and that berry seeds were in the stain. The officers found no fruit on the occasion of this visit to appellant's premises. In August following they again went to appellant's place, and buried in his garden they found a large quantity of preserves, sweet pickles, berries, etc., in fruit jars, which were identified by the Parkers, father, mother and daughter, as property taken from said burglarized house. Appellant was not at home at the time. His wife, according to three men who appeared disinterested, told them she knew nothing of the fruit buried in the garden, that appellant and some boys "brought it there one night and buried it." The officers who found the buried fruit said the earth was packed solidly around the jars, the tops had rusted and it appeared to them to have been buried four or five months. The statement of appellant's wife just mentioned was limited in the court's charge to the purpose of affecting her credibility, she having taken the stand and affirmed that the fruit found on their place was put up by herself and appellant, and buried in July before it was found in August, and she denied making the statement to the three men above referred to. We have given only the state's testimony, it being our purpose merely to make plain the fact that from the state's standpoint the proof was ample to justify the conviction. Conflicts in the testimony are for the jury.
Appellant excepted to the charge of the court as follows:
"The court does not affirmatively charge the jury to acquit the defendant if the alleged fruit did not belong to the prosecuting witness Parker; neither does it instruct the jury to acquit the defendant if the alleged fruit belonged to him or if it belonged to some other person than the prosecuting witness Parker. The defendant specially requests and urges the court to so affirmatively charge said defense in his main charge and says that such charge is erroneous because it does not do so. * * * Also, *Page 614 the charge ignores his affirmative defense in that the evidence raises the issue that the alleged fruit claimed to have been stolen was not found in the defendant's possession until about six months after the alleged burglary, and that his possession and connection with such fruit was subsequent to the alleged burglary, the jury should be affirmatively instructed to acquit the defendant even though the jury should believe the fruit belonged to the prosecuting witness J. P. Parker."
It will be noted that in this exception appellant called the attention of the trial court to the fact that his affirmative defense was that the alleged stolen property was not found in his possession until six months after the alleged burglary, and, therefore, he should be acquitted. However, he does except to the charge on the ground that it failed to tell the jury to acquit if the "alleged fruit" did not belong to Mr. Parker. The court gave a full and complete charge on circumstantial evidence, telling the jury that each fact necessary to the conclusion sought must be proved by competent evidence beyond a reasonable doubt, and that all the facts must be consistent, etc, and of a conclusive nature, and must exclude to a moral certainty every other reasonable hypothesis except the guilt of the accused. This would ordinarily appear to be sufficient, but appellant and his wife having testified that in July, 1923, they put up and buried the fruit found in August thereafter by the officers, and the proof showing that the burglary had taken place in March preceding, the court charged the jury as follows:
"The defendant has introduced testimony to the effect that he came into legal and lawful possession of the canned fruit in question subsequent to the date of the alleged burglary.
"You are charged that if you believe from the evidence in this case that the defendant, Roy McNeely, came into legal and lawful possession of the canned fruit in question subsequent to the date of the alleged burglary, or if you have a reasonable doubt thereof, you cannot consider such possession as any evidence of defendant's guilt."
Appellant and his wife also having asserted that the fruit found in the garden by the officers was not the fruit of Mr. Parker, the court charged the jury as follows:
"The defendant has introduced testimony to the effect that the canned fruit in question, found in his possession, was not the property alleged to have been lost by the prosecuting witness Parker.
"You are charged that if you believe from the evidence in this case that the canned fruit in question, found in the possession of the defendant, Roy McNeely, was not the property alleged *Page 615 to have been lost by the prosecuting witness, Parker, or if you have a reasonable doubt thereof, you cannot consider such possession as any evidence of defendant's guilt."
The court also charged the jury that unless they believed from the evidence beyond a reasonable doubt that the fruit found in appellant's possession belonged to Mr. Parker, they could not convict appellant unless they further found and believed beyond a reasonable doubt that appellant was present and participated in the alleged burglary.
We are required under all the authorities to consider the charge of the court as a whole, and giving effect to this rule it seems plain that the charges above referred to brought directly before the jury whatever issue there might appear to be in the testimony involving the ownership of the buried fruit found in appellant's garden, and effectually gave to appellant the benefit of all his testimony supporting any defensive issue based on the proposition that the fruit was not the fruit of Mr. Parker. Unless some omission in the charge or instruction given be calculated, in our opinion, to affirmatively injure the rights of the accused, we are forbidden by statute to reverse for such matter.
Being unable to agree with appellant that his exception to the charge, in the matter under discussion, presents any error, and being of opinion that the case was correctly decided in our former opinion, the motion for rehearing will be overruled.
Morrow, P. J., not sitting.
Overruled.