70 S.W. 211


GALLOWAY
v.
STATE.


Court of Criminal Appeals of Texas.


October 29, 1902.

Page 212

Appeal from district court, Freestone county; L. B. Cobb, Judge.

John Galloway was convicted of murder in the second degree, and appeals. 
Affirmed.

W. R. Boyd, for appellant. Robt. A. John, Asst. Atty. Gen., for the State.

BROOKS, J.

Appellant was convicted of murder in the second degree, and his punishment 
assessed at confinement in the state penitentiary for a term of seven years.

We find no bill of exceptions in the record, except that contained in the 
statement of facts. However, this bill cannot be considered, because the 
statement of facts was filed after the adjournment of the term of the court, the
law providing that bills of exception must be filed during term time.

Appellant insists that the court erred in giving the following charge on the 
law of circumstantial evidence: "The rule of law in such cases is that, in 
order that a jury may be warranted in finding a defendant guilty on 
circumstantial evidence, all the facts and circumstances necessary to establish
the conclusion of guilt must be proved beyond reasonable doubt, all such facts 
and circumstances must be consistent with each other and with the conclusion 
sought to be established, which is that the person on trial committed the crime 
as charged. All such facts and circumstances must be inconsistent with any 
reasonable theory of the innocence of the defendant, and such facts and 
circumstances, taken all together, must be of such conclusive and satisfactory
nature as to produce in the minds of the jurors a reasonable and moral certainty
that the person on trial, and not some other person, committed the offense 
charged." Appellant objects to the charge on the idea that the court, where it
says "all such facts and circumstances" should have used the word "each"; that
is, that "each fact and circumstance must be inconsistent with any reasonable
theory," etc. This objection is not well taken. If all the facts are consistent
with the guilt of defendant, then each of the said facts necessarily must be
consistent with the guilt of defendant. We have heretofore held that no 
particular form of charge on circumstantial evidence is required. However, we 
insist that it is better always to follow the approved forms, thereby avoiding
any controversy as to the accuracy of the charge. But if the idea conveyed by
the charge is correct, and correctly expresses the propositions of law, we will
necessarily hold it sufficient, whether or not it follows the approved forms. 
Chitister v. State, 33 Tex. Cr. R. 635, 28 S. W. 683; Lopez v. Same (Tex. Cr.
App.) 20 S. W. 395. In the latter clause of the charge we find this language: 
"It is not permitted to jurors to receive any evidence or consider any facts in
the case except as shown in, or deducible from, the testimony of the witnesses."
This, taken in connection with the above-quoted charge, certainly is all that
appellant could insist upon.

Appellant further insists that the court should have instructed the jury that
if appellant was an accomplice, and not present at the time of the commission 
of the offense, to find him not guilty. We find no evidence authorizing such a 
charge. The only thing that appellant cites as a predicate for such charge is 
his statement to the officer, wherein he stated that he had been treated badly
by said officer; that the officer had the wrong man arrested; and that, if he
had come to appellant immediately after his arrest, he would have told the
officer something that would have done him good. We see nothing in this 
statement indicating that appellant was not present at the time of the 
commission of the crime but the bare declaration that he had nothing to do with
it at all. Certainly it would not authorize the charge on the law of 
accomplices. However, the court did charge the jury as follows: "If you have a
reasonable doubt as to whether deceased was shot by some person other than 
defendant, you will find him not guilty." This would cover any possible 
assistance of appellant as to this matter.

The facts show that appellant was the rear brakeman on a south-bound Houston &
Texas Central train, and that he took a pistol and went to a box car, where 
deceased was riding as a tramp, and shot deceased in the head, from which wound 
he died. The fact of the shooting was testified to by two or three witnesses, 
who late in the evening were near the track as the train passed. The identity of
appellant, as being the person who did the killing, is conclusively shown by 
circumstantial evidence, and the body of deceased was identified by his brother.
It is true there is some controversy in the record on the part of appellant as
to these facts, but the state's evidence is clear, establishing it as stated 
above. We take it that the jury were amply authorized in believing the


Page 213

state's theory of the case, and that the evidence was of that conclusive 
character warranting them in so finding. The evidence being sufficient, and no
error appearing in the record, the judgment is affirmed.