#### GARZA v. STATE.

No. 19690.

Court of Criminal Appeals of Texas.

May 4, 1938.

Rehearing Denied June 15, 1938.

*430'J. T. Vance, Jr., of Refugio, and Fred H. Woodard, of Corpus Christi, for appellant. ' ■

Lloyd W. Davidson, State’s Atty., of Austin, for the State.

GRAVES, Judge.

The appellant was convicted of the theft of chickens, and given a penalty of confinement in the county jail'for 100 days.

He first complains of the court’s failure to grant his motion-for a change of venue. His compurgators as well as witnesses on such proposition gave testimony which, taken in its most favorable light, left some d'ouBt1 as' to whether or not the appellant could have obtained a fair trial if placed on trial before'a jury selected entirely of citizens of the Austwell neighborhood, mainly on account of the fact that he had been active in a school election some time previous thereto. The witnesses, were .rather indefinite as to. how many citizens of Austwell were present on the - venire, some failing to -find any thus present, and some saying there were-two or three. The ■state offered,-a controverting affidavit and proof from .witnesses that, such a fair, trial could be had, and.upon such .testimony the court appears -to have overruled such motion. We will also Here o'bsérve that in ho way was it shown that á juror from the objected'to Austwell vicinity was accepted upon -the' jury 'that'"tried- the appellant;' We

cannot say that the trial court abused his discretion in refusing to change such venue. See Branch’s Penal Code, p. ,180, § 299, and cases there cited.

Appellant’s bill of exceptions No. T complains of the court’s failure to charge the jury on the law of circumstantial evidence. There wás direct evidence relative 'to the theft of these chickens and the appellant’s presence there, and where such is in evidence it is sufficient to take such case out of the realm of circumstantial evidence, and a charge thereon is not required. See Branch’s Penal Code, § 2480,. p. 1341: “When there is direct evidence from any source of the taking of the property by defendant from the possession of the person in whom possession is alleged, a charge on circumstantial evidence is not required because the fraudulent intent is sought to be proven by circumstantial evidence,” citing many cases.

It seems to us that the appellant has had his defenses fully and fairly presented to the jury in. a proper charge by the court, and the jury'have seen fit to solve the conflict in. the testimony against the appellant. We are bound thereby', and this judgment is accordingly affirmed.

On Motion for Rehearing.

MORROW, Presiding Judge.

In hjs motion for rehearing appellant reiterates his contention that the trial court committed error in failing to charge on the law of circumstantial evidence. That the chickens in-question were stolen from Starks, the alleged owner, seems to be established beyond controversy. The stolen chickens were subsequently found in the possession of the appellant. Huff, a co-principal, admitted that he accompanied the appellant to the home of Starks and that they committed the offense óf theft.

The well-established rule seems to be that a charge on circumstantial evidence is not required in. a theft case-if there is direct evidence from ' any source of the taking of the property by the defendant, from the possession of the person in whom possession is laid. See Branch’s Ann.Tex.P.C.,. p. 134.1 , §. 2480. Consequently, w.e .do not think, a charge on circumstantial evidence .was required in the instant case. . . • .

The motion-, for rehearing •’ is overruled.