Cupp v. Naughten, 414 U.S. 141, 146-147, 94 S.Ct. 396 [400], 38 L.Ed.2d 368 (1973). Accord, Scheikofsky v. State, supra, 636 P.2d 1107; Loy v. State, 26 Wyo. 381, 185 P. 796 (1919); Flanders v. State, 24 Wyo. 81, 156 P. 1121 (1916); Roberts v. State, 11 Wyo. 66, 70 P. 803 (1902). Instruction No. 1, in pertinent part:
The only controverted issue is the intent with which he took it. It seems to be a fairly well settled rule in this State that where there is direct and positive evidence that the accused took the property in question and that his fraudulent intent is to be inferred from the main facts proven, there is no necessity for a charge on circumstantial evidence, because the case, in a legal sense, does not rest wholly upon circumstantial evidence. See Rundell v. State, 90 Tex.Crim. R.; Roberts v. State, 44 Tex. Crim. 267; Flagg v. State, 51 Tex.Crim. R.. It seems from the record that upon the trial of his case appellant was represented by able counsel who secured for him every legal right to which he was entitled.
There being direct evidence of such taking no charge upon circumstantial evidence was required. See Branch's Ann. Tex. P. C., p. 1341, Sec. 2480, and cases cited, including Roberts v. State, 44 Tex.Crim. R., 70 S.W. 423. Objection to the court's charge was made because there was no instruction upon misdemeanor theft.
This is the matter complained of in the first bill of exception. Referring to the complaint set out in bill of exception No. 3, we are of opinion that the court properly told the jury that evidence showing that appellant had been convicted of a felony prior to the instant prosecution, could only be considered in passing on his credibility as a witness, if at all, and that same must not be considered for any other purpose. Roberts v. State, 44 Tex.Crim. Rep., 70 S.W. 423. A charge similar in verbiage and principle was given limiting the effect of testimony showing that a defense witness had been convicted of a felony prior to this trial. There was no error in the giving of this charge.
Counsel may be correct from a strictly logical standpoint, but their contention would lead to the conclusion that in every case where the intent is the gist of the crime an instruction on circumstantial evidence should be given. We have not been cited to any case which so holds. The prosecutrix in this case gave what we should consider direct testimony, relating in detail what defendant did, and from which the conclusion as to the intent could be drawn, and if that were the only evidence in the case, we are clear that no instruction on circumstantial evidence would be necessary. 16 C.J. 1009, 1010; Roberts v. State, 44 Tex.Crim. R., 70 S.W. 423; Dobbs v. State, 51 Tex.Crim. 629, 103 S.W. 918; Williams v. State, 58 Tex.Crim. 82, 124 S.W. 954. Thompson on Trials, Sec. 2505. There was, however, also considerable circumstantial evidence in this case.
[Williams v. State, 44 S.W. (Tex. Cr.) 1103.] See also People v. Kaatz, 3 Parker, Cr. (N.Y.) 129. A like rule applies where the accused confesses the taking but insists that he did so without a fraudulent intent, under which state of facts it was held that the case was removed from the realm of circumstantial evidence so as to require a special charge thereon, the only issue left being that of intent. [Roberts v. State, 44 Tex.Crim. 267; Baxter v. State, 43 S.W. (Tex. Cr.) 87; Reed v. State, 46 S.W. (Tex. Cr.) 931.] On a trial for theft of cattle where the accused testified that he took the animal by virtue of purchase from a stranger, this relieved the court of the necessity of charging on circumstantial evidence on the theory that there was direct testimony as to the taking.
Where, upon trial of theft of a certain check with intent to defraud and appropriate, the evidence was direct and not circumstantial, there was no error in the court's refusal to charge on circumstantial evidence. Following Roberts v. State, 44 Tex. Crim. 267, and other cases. 8. — Same — Concurring Opinion.
Flagg v. State, 51 Tex.Crim. Rep.; Roberts v. State, 44 Tex. Crim. 267; Alexander v. State, 40 Tex. Crim. 395; Russell v. State, 38 Tex.Crim. Rep.; Williams v. State, 58 Tex.Crim.
Rep., 124 S.W. 954; Flagg v. The State, 51 Tex.Crim. Rep.; Dobbs v. The State, 51 Tex. Crim. 629, 103 S.W. 918; Roberts v. The State, 44 Tex. Crim. 267; Alexander v. The State, 40 Tex. Crim. 395; Becker v. The State, 59 S.W. 949, and cases there cited. Appellant complains that the court erred in failing to give special charges Nos. 1 and 2 requested, relating to his defensive evidence.