Appellant's motion is mainly concerned with a failure of the trial court to charge the jury on the law of circumstantial evidence *Page 170 herein, as was timely requested and exception reserved for such failure.
It is incumbent upon the trial court to instruct the jury upon the law of circumstantial evidence only when the fact sought to be proven rests wholly upon circumstances only. We quote from 24 Tex. Jur., p. 587, Sec. 101: "But a charge upon circumstantial evidence is required only where the evidence of the main facts essential to guilt is purely and entirely circumstantial. Such an instruction need not be given when the State's evidence is direct, nor where the facts are in such close juxtaposition to the main fact to be proved as to be equivalent to direct testimony," with many cases cited in the footnotes.
We early said in the case of Beason v. State, 43 Tex. Crim. 442,67 S.W. 96:
"The rule is this: That it is only necessary where the main fact, or, as one case puts it, 'where the gravamen of the offense,' or, as another case has it, 'where the act of the crime,' rests solely upon circumstantial evidence, that then it becomes a case known as a case of circumstantial evidence requiring a charge upon that. In the Buntain case, 15 Texas Criminal Appeals 515, Judge White used the following language: 'If a court were required to charge the law of circumstantial evidence in all cases where reliance was had upon circumstances to establish any particular fact, then, indeed, there would be but few, if any, cases in which such a charge would not be required; but such is not the rule. A charge upon circumstantial evidence is only required when the evidence of the main facts essential to guilt is purely and entirely circumstantial.' "
Again, in Hanks v. State, 56 S.W. 922, we have said that:
"We are aware of the rule, and we adhere to the same, that when the main fact constituting the gravamen of the offense is proved by direct testimony, and the intent merely with which the act was done is proven by circumstantial evidence, a charge on circumstantial evidence will not be absolutely necessary."
Again, if the intent alone is determined by circumstances, such would not render the case as one depending upon circumstantial evidence. Jones v. State, 34 Tex.Crim. R.,31 S.W. 664.
Let us see what facts are proven herein by direct testimony: It is shown by direct testimony that on October 24, 1940, appellant purchased for his employers 81 mixed calves from Blackwell *Page 171 Brantner at Jayton, Texas, and that he drew a draft on his employers, in payment therefor, in the sum of $3,092.84. It also is shown that such draft was paid by such employers. Again it is shown that on October 25, 1940, the Lubbock Auction and Commission Co. purchased from appellant 40 head of mixed cattle for $1,465.07, and paid by check payable to appellant with his endorsement on the back of such check, which check seems to have been cashed by a friend of appellant's at appellant's request. Again, on the same day, we find that appellant sold 41 head of mixed cattle for the net sum of $1,419.53, for which a check was mailed to Citizens National Bank at Lubbock, Texas. Mr. Arnet, president of that bank, testified that on the 25th or 26th of October, 1940, appellant made a payment on a note owed by him to that bank, such payment being in the sum of $1,419.53, such being paid with a check of the Lubbock Auction and Commission Company.
Mr. Kelly, sheriff of Kent County, testified that about October 25, 1940, he moved from Jayton, Texas, some cattle for appellant, and he thought he was directed by appellant to deliver such cattle to the Lubbock Auction and Commission Company.
By direct testimony we have appellant in possession of 81 head of cattle belonging to his employers; we have him selling 81 head of cattle the next day, and we find that his employers never received such cattle nor the money therefor. The only fact that remains unproven by direct testimony is the identification of the cattle moved by Mr. Kelly as those purchased by appellant from Blackwell Brantner. That matter alone remains as shown by the circumstances, such being the direct proof of a purchase that day of cattle at Jayton, Texas, the removal of some cattle that day, their being placed in the custody of the Auction Company, and the sale by such company of 81 head of cattle, and the receipt of the funds paid therefor by appellant, and his disposal thereof.
We think the main fact to be proven herein has been shown by direct testimony, the identity alone of the cattle moved by Kelly being dependent upon circumstances.
The motion will therefore be overruled.