Appellant first complains in his motion of an evident mistake in our original opinion wherein it was said that the pipe herein alleged to have been stolen was taken on the 9th day of June. This is evidently an error, caused by a statement of a witness who stated that such taking was on or about the 9th day of June. From testimony of other witnesses it is made clear that the pipe was taken from its accustomed place sometime during the night of June 8th. It also follows that the early morning of June 9th was the date that appellant brought this alleged stolen pipe into the Supply Company's office and sold the same to such company. As thus corrected, we can see no error in such portion of the original opinion.
The only further complaint found in this motion can be summarized as relating to the court's failure to properly charge on the appellant's defense to this charge. His contention, supported by his witnesses, was to the effect that on the night of June 8th he and a companion were on the Abilene-Albany highway, and about a mile or two east of Abilene met a dark complected man in a truck loaded with pipe, the said truck having a flat tire; that they assisted this stranger in fixing his tire, and eventually appellant purchased certain pipe from this stranger, which pipe later proved to be the stolen pipe.
The court in his charge told the jury that: "If you believe from the evidence that the defendant bought eight joints of ten inch pipe from a party on the Abilene-Albany Highway, a mile or two East of Abilene, on the evening of June 8th, 1937, or if you have a reasonable doubt thereof, you will acquit the defendant."
It occurs to us that the court was fairly liberal in this quoted portion of his charge in his instruction to the jury. However, we find an additional complaint as to the court's charge in that he failed to charge that if the appellant had acquired such stolen pipe after the same was stolen, even though he might have known same was stolen, nevertheless he was entitled to an acquittal under the charge in this cause. There will be no question but what such a contention is the law, the only difficulty arising herein being that the facts do not raise such a question. The appellant failed to take the stand; he offered no explanation of his possession of such property, save that of his witnesses who testified that he purchased the same from this stranger. Under these facts the careful trial court gave the above quoted instruction to the jury, giving him the *Page 245 benefit of an acquittal if he bought any pipe from anybody at the time and place testified to by his witnesses. The trial court is not required nor expected to charge upon every possible defense that might be conceived relative to a criminal offense; the court should only charge upon the defenses presented by the evidence. In this case the testimony of appellant's witnesses show, if true, a bona fide purchase, and the court charged thereon. We do not think he was required to go further, in framing his charge to the jury, than to the defenses presented. Evidently the jury did not believe appellant's witnesses, and we are bound by its conclusion.
The motion will be overruled.