Appellant was convicted of theft from the person, and his punishment assessed at two years confinement in the penitentiary.
Appellant objected to the seventh paragraph of the court's charge which is, as follows: "If you find from the evidence that any of the property mentioned in the indictment was privately stolen from the person of the said John Shulark, at the time and place charged in the indictment, and that subsequently any of the property so stolen was found in the possession of the defendant, then if the defendant, when such possession was called in question, stated that he had found the property in Shiner, then, if you find that such explanation of possession by the defendant is reasonable and probably true, it devolves upon the State to prove its falsity, and if you so find, and the State has not proven the falsity of such explanation, then the possession of such property by the defendant (if he had such possession) must not be considered by you as tending to establish the guilt of the defendant." The grounds of objection stated in the bill of exceptions are as, follows: That the same in the beginning erroneously stated the law as to the effect of an explanation reasonable and probable by appellant on being found in possession of property alleged to have been stolen; and because said paragraph taken as a whole was vague, confusing, unintelligible, misleading and calculated not to instruct but to mislead the jury as to the law. We do not consider the objections urged in this bill as tenable. The charge is an instruction in favor of the defendant, and tells the jury in effect that, if the explanation given was reasonable and probably true, that it will be taken as true and will go to the acquittal of appellant. Nor do the subsequent portions of the objection raise any question as to the charge. We do not believe *Page 359 that it is vague or confusing, or calculated to mislead the jury. In the motion for new trial appellant again excepts to this charge. The ground of objection stated is, that it imposes upon defendant a greater burden than the law does; that the law requires the State to show the falsity of any account given by the defendant, if the account is in itself reasonable and probable. We understand this to be exactly what the charge does; that is, requires the State to prove the falsity of said explanation of appellant, if the same was reasonable and probable. The charge further instructs the jury that, if the State failed to prove the falsity of said explanation, then the possession of said property by defendant, if he had such possession, must not be considered by the jury as tending to establish the guilt of the defendant. We understand this to be correct. The effect was to inform the jury, if they believed the explanation given by defendant was reasonable and probably true, and the State had failed to prove its falsity, the fact of such possession must not be considered by the jury as in any manner tending to establish the guilt of the defendant. These are the only exceptions urged against said charge, and in our opinion they do not point out any question showing that said charge was improper or illegal.
In motion for new trial appellant insisted the same should be granted on the ground of newly discovered evidence. This newly discovered evidence was of an impeaching character. New trials are not ordinarily granted for this character of evidence. Witness Frank Sadalacek was introduced by defendant. On his examination in chief he stated that he saw appellant on the day he went to town, and before he started, have a silver dollar and some greenbacks. On cross-examination he admitted that he saw no money in defendant's hand except a silver dollar; that it was Mrs. Hilscher, defendant and old man Hilscher who told him to swear as he did. The testimony developed from this witness on cross-examination was denied by Mrs. Hilscher. Why the defendant's father was not placed on the stand to deny this is not stated. But it seems the testimony desired, as judged from the affidavits, was to impeach appellant's own witness, by showing that he had stated to other parties that he saw appellant with a $10 currency bill, before he went to town, or rather with some currency. Appellant only claimed by the testimony adduced by him to have had a $10 currency bill and a silver dollar. By other than the State's witnesses it was shown that on the night after the alleged robbery he had more currency then $10. We do not think the impeaching testimony was material or upon an issue that would have likely exerted any influence with the jury. The court did not err in overruling the motion on the ground of newly discovered evidence.
The judgment is affirmed. Affirmed.