This case was affirmed on a previous day of this term, and now comes before us on motion for rehearing.
The first ground of the motion insists the court erred in holding that the trial court did not err in failing to charge on the issue of alibi. We do not think there was any error in this, after a careful review anew of the record. The trial court told the jury that the evidence must exclude every other reasonable hypothesis than that appellant was the party who committed the homicide.
The second ground of the motion complains that this court was in error when it held that it was not necessary for the trial court to limit evidence going to show a cotemporaneous burglary as a circumstance to show that he was in the immediate neighborhood of the homicide at the time it was committed. The authorities are not uniform on the question as to whether this character of testimony should be limited or not. The general rule, however, in reference to these matters, is laid down by this court in the case of Sue v. State, 52 Tex.Crim. Rep., which rule is as follows: "When testimony, in a trial for murder, could not have been legitimately or rationally used for any *Page 359 other purpose than that for which it was used, there was no error in failing to limit the same to that purpose." This decision cites the following authorities: Wilson v. State, 37 Tex. Crim. 373; Moseley v. State, 36 Tex.Crim. Rep.; Winfrey v. State, 41 Tex.Crim. Rep.; 56 S.W. Rep., 919; Blanco v. State, 57 S.W. Rep., 828. The same rule is recognized in the case of Long v. State, 114 S.W. Rep., 632, cited by appellant. The case of Watson v. Commonwealth, 116 S.W. Rep., 287, by the Court of Appeals of Kentucky, cited by appellant, holds that, on a trial for murder in a local option county, it is error to admit evidence as to a sale of liquor by the accused to the deceased and his companion shortly before the homicide, and as to a conviction of the accused sometime before the homicide for selling liquor without license, where such offenses were not connected with the homicide, and neither supplied a motive for it or threw any light upon the question whether it was necessary. This rule is recognized in all the courts, and is not in conflict with the authorities above cited. The case of Thornley v. State, 36 Tex.Crim. Rep.; 34 S.W. Rep., 264, cited by appellant in his motion for rehearing, was a case where the appellant was on trial for passing a forged instrument, and evidence was introduced that defendant had in his possession another forged instrument. It was held that it was not reversible error for the court to fail to limit the effect of such evidence, since a charge thereon would have called undue attention thereto. We have reviewed all the authorities cited by appellant, and none support the contention that the failure of the court to limit the fact of the burglary to the purpose for which it was intended was error. In fact, as stated in the original opinion, we can not see how the jury could have appropriated the fact of the burglary to any other purpose than to show that appellant was in the neighborhood, close by the scene of the homicide, a few hours at most from the hour that the assassination was committed. For the court to have limited the effect of said evidence, as stated in the Thornley case, supra, would have given undue prominence to the burglary, and served to injure appellant, instead of assisting in his defense on a charge of murder. Appellant in this case was charged with murder — not burglary — and it is utterly irrational to presume that a sworn jury would disregard their oaths and convict a man of murder on the theory that they thought he had committed burglary. Certainly, it was admissible, as appellant concedes, to introduce the possession of the stolen goods that were identified and found in possession of appellant, as a circumstance — and a cogent one at that — to absolutely demonstrate the proximity of appellant to the scene of the assassination. Now, for the court to have told the jury that it limited the evidence to that purpose, and that it was admitted for that purpose alone, would serve to emphasize the probative force of the evidence, instead of shielding appellant from his supposed conviction for burglary.
The magnitude of the penalty in this case has compelled us to write somewhat at length on this matter, but we have carefully reviewed all *Page 360 the evidence and complaints of appellant, and must say that this record conclusively demonstrates that appellant is guilty of an assassination, and well deserves the punishment awarded him by the jury. The motion for rehearing is therefore overruled.
Overruled