Appellant was convicted of burglary. When the court called him up for sentence, he interposed a motion for new trial, under article 839, Code Criminal Procedure. This motion was not filed within the two days mentioned in the statute; in fact he had not filed a motion for new trial or motion in arrest of judgment. This occurred some days after his conviction, and he asked to be heard on the motion for new trial, and for its disposition, in bar of the sentence. Appellant was not defended by an attorney and was unable to secure counsel to assist him, until about thirteen days after the trial. The motion for new trial sets up various grounds why it should have been granted, mainly criticising the charge of the court. We believe the motion should have been heard by the court. This case does not come within the rule laid down in Darter's case, 5 Texas Ct. Rep., 607, nor Hines v. State, 44 Tex.Crim. Rep.. In the Darter case appellant undertook to file his motion for new trial at a term of the court subsequent to his conviction, and after his re-arrest, he having escaped custody the night following his conviction. In that case the record did not contain a statement of facts, and there was no criterion furnished this court by which it could ascertain there was merit in the grounds of the motion. In Hines' case, he invoked the appellate jurisdiction of this court, and pending the appeal escaped, and some fourteen years afterwards was arrested, and undertook, when called up to be sentenced, to interpose the bar provided for in article 839, supra. It was held in that case, that it was too late; he had invoked the appellate jurisdiction of this court, and could not thus secure a second appeal. In other words, in order to secure the benefit of article 839, supra, it must be done before an appeal has been taken. In this case, the motion was interposed at the same term of the court at which the conviction occurred, and before appeal. We believe that the court should have heard the motion, and that the grounds of said motion presented merit. Under the view we take of this question it now becomes the duty of this court to decide the grounds of the motion *Page 191 as they should have been legally decided by the trial court, inasmuch as the entire matter is before us.
As the record presents itself the case is one of circumstantial evidence. However, this question is not suggested in the motion for new trial for revision, nor was exception taken to the charge for this reason. We mention this simply that upon another trial, if the record is then as now, this phase of the law should be given.
The court charged the law of principals, and among other phases, with regard to keeping watch. There is no evidence that appellant kept watch. This is assigned as error in the motion for new trial. The exception is well taken. In fact, if the statement of witness Kessler is to be considered as evidence, appellant was not present at all and had no participancy in the burglary, and his only connection with it was as a receiver of stolen property. Kessler testified to the confessions of Williams and Crockett. These two parties stated that they broke the car but appellant was not present when it was done; that he subsequently employed a drayman to haul the goods from the place where they secreted them to the merchant to whom they were subsequently sold. If we look at the case from the standpoint of these confessions, the State has no case of burglary against appellant, but simply the receiving of stolen property. Appellant's evidence was to the effect that he was not present. His witnesses were introduced for the purpose of proving an alibi. The court's charge upon another trial should give the law with reference to alibi fully; and the jury should be told in clear and affirmative language that unless the evidence shows beyond a reasonable doubt, that appellant participated in the burglary, actually or as a principal, being present aiding and abetting others, he should be acquitted; but the receiving of stolen property, after being taken from the car would not make him a principal in the burglary.
For the reasons indicated, the judgment is reversed and the cause remanded.
Reversed and remanded.