The appellant was tried and convicted of the offense of theft of one sheep, and his punishment was assessed at confinement in the State penitentiary for a term of two years.
The record shows that some time between the first day of December, 1933, and the first day of February, 1934, Jim Soules lost a sheep. Some time thereafter he found a sheep on the premises of the appellant's father, with whom the appellant, who was a single man, resided. The sheep which Soules found at the Dixon place and which he claimed to be his appeared to be about three years old and was branded a "W" with red paint on each side near the shoulder. This brand *Page 586 had been covered with black paint and a stripe across its hip. The ears were cut off square. Mr. Soules asked the appellant if it was his sheep, to which he replied that it was, and when the witness asked him where he got it, he said from Mr. Arb Fulton at Lometa. A.J. Fulton testified that he sold some sheep to the appellant in the fall of 1931; that it was his best judgment that it was in 1931 but he could not be positive about the time. It was his impression that the sheep which he sold to appellant were five or six years old. Sam Rahl testified that he was present at the time Mr. Soules made an examination of the sheep. We quote from his testimony: "The question asked the defendant was how old the sheep was and he said it was six or seven years old and Mr. Soules looked in the sheep's mouth and it was three or four years old. I saw Mr. Soules look at the sheep while all the persons were there at the time, and when some one made the statement that the sheep was a three or four year old, then the defendant claimed he got it from Mrs. Casbeer. Mrs. Casbeer testified that she sold four ewes to appellant in 1934. The appellant did not testify in his own behalf.
The court in his charge instructed the jury that if they believed from the testimony that appellant purchased the sheep in question from either Mr. Fulton or Mrs. Casbeer, or if they had a reasonable doubt thereof, that they should acquit the appellant and say by their verdict "not guilty," but the appellant contends that in addition to the foregoing charge the court should have instructed the jury on the law of exculpatory statements. We do not agree with the appellant in his contention because the State did not rely for a conviction upon the appellant's confession. In fact, appellant made no confession; he made an explanation when first questioned about his possession of recently stolen property of how he came into possession of the same, and the court in his charge pertinently instructed the jury upon that phase of the case. In the case of Freeney v. State, 59 S.W.2d 385, this court, speaking through Judge Hawkins, said: "The following cases are illustrative of the proposition that the refusal of a charge on exculpatory statements does not call for a reversal in every instance, even though timely request was made for such instruction." Citing Nichols v. State, 10 S.W.2d 109; Bradley v. State, 295 S.W. 606; Harris v. State, 281 S.W. 206; Simpson v. State, 263 S.W. 273; Pickens v. State, 218 S.W. 755; Casey v. State, 113 S.W. 554. Under the facts in this case we do not believe that the court committed any error in *Page 587 declining to instruct the jury on the law of exculpatory statements.
No error appearing in the record, the judgment of the trial court is in all things affirmed.
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.
ON MOTION FOR REHEARING.