Appellant was convicted of the theft of a gelding, the property of one Hew ton Wilkes; his punishment being assessed at six years’ imprisonment in the penitentiaiy. The record is quite voluminous and the trial appears to have been conducted with marked zeal and ability on both sides. We have given it a most thorough consideration in connection with the able oral argument and brief of appellant’s counsel. It is purely a case of circumstantial evidence, and the defense was an alibi. Host of the errors brought to our attention are supposed defects in the charge of the court to the-jury, and the principal complaints leveled at the charge call in question its sufficiency upon circumstantial evidence and the law of alibi.
We are of opinion that the charge is sufficient upon circumstantial evidence, and defendant should have requested a fuller and more explicit instruction upon this branch of the law of the case, if he desired it. This he failed to do. It is also objected to this *358branch of the charge that it is upon the weight of the evidence. If we were to separate the first three lines of the fifth paragraph from the remaining portions of said paragraph, and consider it as an isolated charge, the objection would be most certainly well taken. The objectionable portion is as follows: “ I charge you that circumstantial evidence is or may be as convincing in establishing guilt as direct or positive testimony.” Such an instruction has been more than once expressly condemned as being on the weight of evidence. (Harrison v. The State, 8 Texas Ct. App., 183; Harrison v. The State, 9 Texas Ct. App., 407; Walker v. The State, 13 Texas Ct. App., 618.) A similar error was committed in Post v. The Slate, 10 Texas Ct. App., 580, and it was there held that a charge upon the weight of evidence is not necessarily ground for reversal unless it appears by bill of exceptions that it was objected to at the time, so as to enable the court to correct or withdraw it from the jury.” (See, also, Maddox v. The State, 12 Texas Ct. App., 429.) The charge we are considering was not excepted to at the time upon the ground stated. Besides this, the remaining portion of the paragraph in which this error occurs fully corrects it, and the paragraph could not, taken as a whole, have had the most remote tendency to mislead.
As to the charge on alibi, defendant’s criticism upon the sixth paragraph of the court’s charge is doubtless correct, but upon this question of alibi we find defendant’s counsel requested a special instruction upon the subject, which most fully submitted the law, and corrected any apparent or supposed defects in the court’s charge; and this instruction was given by the court in the language in which it was asked, without alteration or modification. We cannot see that defendant has any just ground to complain in this regard.
That portion of the motion for a new trial based upon newly discovered evidence was most hotly contested by the many affidavits and counter-affidavits filed on either side. The court below was in a better situation to judge of the matter than this court could possibly be, and it has not been made to appear to us that the ruling of the court was erroneous.
We have found no reversible error in the record, and the judgment is affirmed.
Affirmed.
[Opinion delivered November 14, 1885.]