Appellant complains of the omission of some details in the statement of the facts set out in our original *Page 232 opinion in so far as it might affect his contention that a charge on circumstantial evidence was demanded. We have again examined the evidence, both that given on direct and cross-examination, having in mind the particular matters called to our attention in the motion for rehearing. We see no necessity for going into lengthy details. We still are not able to agree with appellant that the case is one of circumstantial evidence.
As we understand the record the evidence about the broken glass and wet place in Crosby's car came into the case in the following manner; neither of the state's witnesses, Reed nor Lott, testified to anything about that matter on direct examination. They saw appellant get out of Crosby's car. On cross-examination of Lott appellant himself developed that as Lott passed the Crosby car the crash of glass or a jar breaking in the car was heard. Both appellant and Crosby admitted that they had been sitting in the car but denied that appellant left the car with a bottle of whiskey, and also denied that any whiskey had been in the car. On rebuttal Reed testified that when he came back by the car with appellant, and while Lott and Crosby were still standing near the car witness saw the door of the car open and saw glass on the floor boards and fender. Lott also testified on rebuttal that about ten or fifteen minutes after appellant was taken to the court house witness went back to the Crosby car and saw broken glass in the car and a wet place on the floor. Even though the car may have been moved in the meantime it would not under the circumstances render inadmissible the evidence given by Lott.
Appellant calls attention to the fact that we did not discuss his criticism of the fifth paragraph of the charge in which the jury was told if they found that appellant "did not" transport the liquor in question or "if they had a reasonable doubt thereof" they would acquit. Appellant's objection was that said instruction as worded shifted the burden of proof and was on the weight of the evidence. It may be conceded that the language of the charge was not well chosen and is subject to criticism as indicated by the opinions in Landers v. State,63 S.W. 557; Rice v. State, 103 S.W. 1156; Sain v. State,148 S.W. 566; Alexander v. State, 204 S.W. 644. It will be observed however that in none of those cases was a reversal predicated alone upon the charge criticized. In the Sain case Judge Davidson says: "Taking this charge as given, in the light of the qualification at the end of the quoted charge, with reference to reasonable doubt, the jury may not have been misled, but it is *Page 233 advisable and better not to use this character of language in instructing the jury." In the present case the jury was told that they must believe from the evidence beyond a reasonable doubt that appellant did transport the whiskey, and also that appellant was presumed to be innocent until his guilt was established and if they entertained a reasonable doubt as to his guilt they should acquit. The jury understood quite as well as the trial judge and counsel that the sole issue was whether appellant transported the liquor. We are not able to conceive how it was possible for the jury to have been confused or misled by the charge complained of. Art. 666 Cow. C. P. provides that a judgment shall not be reversed unless the error complained of was calculated to injure the rights of appellant.
The motion for rehearing is overruled.
Overruled.