Appellant has only two grounds of complaint in his motion for rehearing. The first is to the action of the court in refusing to give his special charge on circumstantial evidence. We did not particularly discuss this question in the original opinion, deeming it unnecessary. We will now state and discuss it.
The court did not charge on circumstantial evidence. Appellant requested a charge on that subject, which the court refused. The question is raised by appellant in his motion for a new trial (7a) by claiming the court erred in failing and refusing to give his special charge on the subject, quoting the charge, and then states the reason his charge should have been given, because there was no evidence offered by the State which shows or tends to show that defendant had anything to do with the original taking of this mule, except the uncorroborated evidence of John Baird, the accomplice; and because the testimony of said Baird shows conclusively that at the time he and defendant took said mule and prior thereto, defendant pointed out the mule to Baird and claimed it as his mule; then contends that if he did take the mule, it must have been by appellant and put in his pasture prior to November 6th and prior to the time Baird's testimony shows it was taken from defendant's pasture. Then concludes, "all of which is shown by bill of exceptions No. 8." There is no such bill in the record or any other raising or presenting this question. We have carefully again considered the evidence and especially on this point. It does not show that appellant had any pasture. Mrs. Johnson, his wife, testified: "We lived on the Matthews ranch in Fisher County." No witness testified that appellant owned or controlled any pasture at the time and just before this mule was stolen. Mr. Carroll, the owner, testified, which was not disputed, that he kept this mule in his pasture which was right at where appellant then lived, Carroll's pasture being only across a little lane thirty or forty feet wide from where appellant then lived. In his testimony he also showed that this mule was stolen on the 6th or 7th of November, 1912. Baird testified that appellant and he took this mule the night of the 6th, carried it to Abilene that night and had it at Abilene early the next morning. The mule, by several witnesses, was shown to be *Page 392 at Abilene early on the morning of the 7th. The fact, if it be a fact, that in the evening of the 6th appellant and Baird were riding about and coming in sight of this mule, appellant pointed it out to Baird and claimed it as his mule, would not show that he had previously stolen the mule. Baird's testimony is that they were then in the pasture. Whose he did not say. Evidently it was that of Carroll. Certainly, it is not shown that it was in any pasture owned or controlled by appellant. Baird says appellant drove that mule up in his lot and caught it that night, and that they, together, that night took it to Abilene.
It has been so many times and uniformly decided by this court that it is not error to fail to charge on circumstantial evidence, though the only direct evidence is that of an accomplice, we deemed it unnecessary to discuss and decide the question in the original opinion. In his motion for new trial, as shown above, in effect he states that the evidence of John Baird, the accomplice, does show that appellant originally took this mule and the record shows that John Baird did so testify. His evidence as to the offense was sufficiently corroborated, as required by the court's charge and the law, and the court did not err in not charging on circumstantial evidence. Wampler v. State, 28 Texas Crim. App., 353; Thompson v. State, 33 Tex. Crim. 223; Kidwell v. State, 35 Tex.Crim. Rep.; Rios v. State, 39 Tex.Crim. Rep.; McKinney v. State, 48 Tex. Crim. 405; Tune v. State, 49 Tex.Crim. Rep.; Hanks v. State,55 Tex. Crim. 451; Rios v. State, 48 S.W. Rep., 505; Barber v. State, 69 S.W. Rep., 515; Williams v. State, 45 S.W. Rep., 494; Martinez v. State, 61 Tex.Crim. Rep., 133 S.W. Rep., 881.
Appellant's other complaint is that this court was wrong in the original opinion in holding that appellant's wife could be impeached as stated and shown in the original opinion. It is unnecessary to go over and discuss this question further. We will state, however, that appellant's wife, on direct examination by him, testified that appellant ate supper on the evening of November 6th at home with her and their children, and that Baird was not there that night, and did not take supper with them, but left their house that evening about an hour by sun with two men in a hack, and that she saw Baird no more until after he was arrested in Abilene the next day, and that appellant stayed at home the whole of the night of November 6th and that he left their home about 7 o'clock on the morning of the 7th, after breakfast, and at the time he then left he told her where he was going. In her direct testimony she did not then say where he told her he was going. On cross-examination, in answer to the State's question, without any objection, she said he then told her he was going to Bush. The material point in her testimony on this question was that appellant stayed at her house all night that night and left there the next morning with Baird, telling her where he was going. This was very material for appellant. Then it became material for the State, if it could, to impeach her by showing that that very morning she told Mr. Owens that that morning her husband and *Page 393 Baird left her house after breakfast and had gone to Mulberry Canyon, instead of as stated in her original direct testimony. Clearly the State had the right to thus impeach her testimony. In addition to the authorities cited in the original opinion on this point, we cite Smith v. State, 44 S.W. Rep., 520; Crews v. State, 34 Tex.Crim. Rep.; Exon v. State, 33 Tex. Crim. 461; Young v. State, 54 Tex.Crim. Rep.; Red v. State,39 Tex. Crim. 414.
The motion for rehearing is overruled.
Overruled.