The main facts were attested by eye witnesses. It is only when a conviction is sought upon circumstantial evidence alone that the trial court is required to charge the law relating thereto. Barnards v. State, 88 Tenn. 183, 235, 12 S.W. 431; State v. Donnelly, 130 Mo. 642, 649, 32 S.W. 1124; State v. Robinson, 117 Mo. 663, 23 S.W. 1066; Cotton v. State, 87 Ala. 75, 6 So. 396; Weathersby v. State, 29 Tex. App. 279[ 29 Tex.Crim. 279] 15 S.W. 823; Hays v. State, 30 Tex. App. 404[ 30 Tex.Crim. 404], 17 S.W. 940; Baldwin v. State, 31 Tex Cr R 589, 21 S.W. 679; Adams v. State, 34 Tex. Cr. R. 470, 31 S.W. 372; Crews v. State, 34 Tex Cr R 533, 543, 31 S.W. 373." See also State v. Schneider, 53 N.D. 931, 208 N.W. 566.
We must adhere to the conclusions expressed in our original opinion upon the point under consideration. See Baldwin v. State, 31 Tex. Crim. 589. The motion for rehearing is overruled.
In Holland v. State, 45 Tex.Crim. Rep., the accused was found in a room which had been left closed, and testified that he was looking for a toilet and came to the door of this room, which he said he found partly open and he entered thinking it a toilet, and had hardly gotten in before the lady came, saw him in there and screamed. It was held no error for the court upon these facts to refuse to charge on circumstantial evidence. On the other phase of the case, in Baldwin v. State, 31 Tex. Crim. 589, certain missing hogs were tracked a short distance from where they were taken and were discovered in possession of the accused and his brother who were driving them, and drove them home and butchered them. Judge Davidson for this court says:
Rep.; Kinkade v. State, 61 Tex.Crim. Rep.; Baldwin v. State, 31 Tex. Crim. 589; Reed v. State, 46 S.W. Rep., 931; Smotherland v. State, 83 S.W. Rep., 838; Michie's Crim. Digest, Texas Dec., vol. 5, p. 293, also p. 364. The character of the property stolen is such as to be difficult to identify with such certainty as to justify a conviction resting alone on its possession.
For a long list of authorities holding that such testimony as this does not call for a charge on circumstantial evidence, see Branch's Crim. Law, sec. 203, one of the rules stated being that if the facts proven are in such close juxtaposition to the factum probandum as to be equivalent to direct testimony, a charge on circumstantial evidence is not required, citing Wheeler v. State, 15 Texas Crim. App., 607; Montgomery v. State, 55 Tex.Crim. Rep.; Holt v. State, 9 Texas Crim. App., 571; Baldwin v. State, 31 Tex. Crim. 589; Adams v. State, 34 Tex.Crim. Rep.; Holland v. State, 45 Tex.Crim.
Under this condition of the record the court was not called upon or required to charge upon this subject. Baldwin v. State, 31 Tex. Crim. 589, and Bennett v. State, 32 Tex. Crim. 216. The other questions in the case need not be discussed.
It is a well settled proposition of law, supported by a long line of authorities, that where the identical property charged to have been stolen is not found in the possession of appellant, then it is error to charge upon the law of recent possession of stolen property. Mayfield v. State, 23 Texas Crim. App., 649; Baldwin v. State, 31 Tex. Crim. 589; Roy v. State, 34 Tex.Crim. Rep..
While it is true in this case that no witnesses testify that they saw the act of killing, yet the facts and circumstances of this case are of a character to place defendant in such proximity and juxtaposition to the fact of killing as to render such a charge unnecessary, and besides, the statements of deceased and Mrs. Crews were in the nature of positive evidence. Baldwin v. The State, 31 Tex. Crim. 589; Montgomery v. The State (Texas Criminal Appeals), 20 S.W. Rep., 926; Adams v. The State, ante, p. 470. The little boy in the house heard his mother, just before she received her death-wound, cry out to Crews not to shoot; and the father, as soon as they went to him, as a part of the res gestæ, when asked who did it, said that it was Crews, and that he robbed him, and rode off on his horse Joe; and he was seen a short time thereafter, near the scene of the homicide, riding the deceased's horse, with his gun.