Appellant and Newton were arrested in Fort Worth in possession of a car in which was the property taken from the burglarized house. The car was muddy, with fresh red clay mud. Appellant and Newton had the same kind of mud on their shoes and clothes. One of them said the car is "our car." Appellant said they lived on a ranch near Denton. Appellant did not testify on the trial.
We do not think our conclusion wrong in which we upheld the trial court's refusal to change his charge in response to an exception, copied in our original opinion, to the failure of the court to tell the jury to acquit if they believed appellant borrowed the car with its contents from John Oglesby. The matter is discussed at some length in our original opinion. Appellant's affirmative defense was an alibi, his wife having sworn that on the night of the burglary he was with her in Oklahoma; on this defensive theory the court fully gave an affirmative charge.
If appellant was present and participated in the burglary, he would be *Page 57 guilty herein. The borrowing of a car in which was found the fruits of the crime, from one participant in the theft, by another participant therein, manifestly would not justify the trial court in telling the jury to acquit if they found from the testimony that the car was so borrowed. The supposed borrowing of the car was but a circumstance, and was combated by the state herein by its impeachment of defense witness Ward who swore to the borrowing, and the impeachment of appellant's brother who swore thereto, by showing him to be a convict in the penitentiary at the time he gave the testimony; also by proof that the fresh mud on the car and on the shoes and clothes of appellant, was identical, and was not the mud of the locality where he was arrested; also by proof of the claim of ownership of the car at the time of the arrest.
No special charge was asked embodying any theory of a borrowing in ignorance of the contents of the car, or a borrowing by one who was not a participant in the taking of the contents of the car. Had there been such charge framed in appropriate language, appellant would have been in much better position to complain. The state relied on circumstances, which might be set out, to show appellant's guilt. These circumstances he sought to rebut. It could hardly be contended that in such case it would be the duty of the trial court to single out various circumstances and embody in his charge an affirmative presentation of the law applicable to that particular circumstance, either for the state or the defense. Smotherman v. State, 47 Tex.Crim. Rep., 83 S.W. 838; Beard v. State, 57 Tex.Crim. Rep., 123 S.W. 147; Moore v. State, 59 Tex.Crim. Rep., 128 S.W. 1115.
Believing the case correctly decided originally, the motion for rehearing is overruled.
Overruled.