
    MORAY v. STATE.
    (Court of Criminal Appeals of Texas.
    March 13, 1912.)
    1. Criminal Law (§ 1144) —Appeal —Presumption — Correctness of Ruling Below.
    It must be presumed on appeal that the evidence justified the overruling of a motion for a new trial on the ground of misconduct of the jury, where the evidence taken on the motion is not in the appellate record.
    [Ed. Noté. — For other cases, see Criminal Law, Cent. Dig. §§ 2736-2781, 2901, 3016-3037; Dec. Dig. § 1144.]
    2. Burglary (§ 38) — Admission op Evidence.
    In a prosecution for burglary of a dwelling house, a witness testified that a ring belonging to her which was lying on the dresser in her room in the burglarized house was stolen on the night of the burglary, and that she after-wards got it back from G., and identified it before the jury. G. testified that he got the ring from accused when he was arrested, and delivered it to such witness. Seld, that the evidence of such witness was admissible.
    [Ed. Note. — For other cases, see Burglary, Cent. Dig. § 91; Dec. Dig. § 38.]
    3. Witnesses (§ 393) — Evidence.
    In a burglary prosecution, where accused testified that he obtained a ring, shown to have been stolen from the burglarized house, from a man in another town, the state could show that on a former trial accused located the transaction by which he obtained the ring in a different town.
    [Ed. Noto. — For other cases, see Witnesses, Cent. Dig. §§ 1252-1257; Dec. Dig. § 393.]
    4. Witnesses (§ 328) — Admission op Evidence — Identification op Stolen Property.
    Where a witness in a burglary case positively identified a ring in accused’s possession as one stolen from her in the burglarized house, evidence was not admissible by a jeweler as to whether he would undertake to identify a similar ring after its absence for several months if it had no peculiar mark on it.
    [Ed. Note. — For other cases, see Witnesses, Cent. Dig. § 1103; Dec. Dig. § 328.]
    5. Criminal Law (§ 725) — Trial—Improper Argument — Deliberations op Jury — Admonition op County Attorney.
    A statement by the county attorney in his opening argument that he felt it proper to warn the jury not to discuss anything except the evidence while retired, as courts sometimes had to set aside verdicts because juries discussed improper matters in the jury room, was not improper, but rather commendable.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. § 1680; Dec. Dig. § 725.]
    6. Criminal Law (§ 829) — Instructions— Request — Charges Already Given.
    It was not necessary to give requested charges on circumstantial evidence and alibi, where the court’s charge thereon was full and complete.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. § 2011; Dec. Dig. § 829.]
    7. Burglary (§ 38) — Admission op Evidence-Possession op Stolen Property.
    That accused was found in possession of a ring stolen from the burglarized house was admissible though Sis possession was five months after the burglary.
    [Ed. Note. — For other cases, see Burglary, Cent. Dig. § 91; Dec. Dig. § 38.]
    Appeal from District Court, Hill County; C. M. Smithdeal, Judge.
    Henry Moray was convicted of burglary, and he appeals.
    Affirmed.
    C. E. Lane, Asst. Atty. Gen., for the State.
    
      
      For otlier cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key No. Series & Rep’r indexes
    
   HARPER, J.

Appellant, under an indictment found by the grand jury, was tried and convicted of burglary, and his punishment assessed at five years in the penitentiary. This is the second appeal in this case, the judgment on the former appeal being found in 135 S. W. 569. In his amended motion for new trial, defendant alleges the misconduct of the jury, and states that his failure to testify on this trial was discussed by the jury after their retirement.

It is apparent from the record that the court heard evidence on the allegations in the motion; this evidence is not brought before us, either in the statement of facts, by bill of exceptions or otherwise; consequently, we must presume that the evidence justified the - action of the court in overruling the motion for new trial. Not having the evidence before u's, we would not be authorized to presume that the court acted erroneously in the matter.

A number of hills of exceptions were reserved to various portions of the testimony of Mrs. John Anderson, who testified that on the night the house was entered she lost a ring; that she had gotten the ring back, Mr. Glasgow delivering it to her. That she had the ring now, identified it, and exhibited it to the jury. That the night the ring was stolen it was lying on the dresser in her room. Hr. Glasgow testified tliat be got tbe ring from appellant at tbe time be was arrested, and be carried it and delivered it to Mrs. Anderson. This testimony was also objected to. Mrs. Anderson positively identified tbe ring returned to ber as tbe one sbe lost. There was no error in admitting this testimony.

After tbe state bad rested its case in chief, tbe appellant bad Mr. Glasgow recalled, and developed tbe fact that, tbe night appellant was arrested, be stated to him that be (appellant) bad bought tbe ring from a man in Hillsboro, when tbe state proved by tbe witness that on tbe former trial appellant bad testified be got the ring from a man in Corsicana, not naming him, saying that they were staying at tbe same hotel in Corsicana. The appellant objected to the witness being permitted to state what the appellant bad testified on a former trial. If tbe appellant developed the fact that be bad made one statement. accounting for bis possession of the ring, it would be admissible for tbe state to show that be bad made contradictory statements, and, when testifying in bis own behalf, bad claimed that be secured tbe ring at another and different place. In Smith v. State, 75 S. W. 298, tbe contention of appellant is decided adversely to him. See, also, Preston v. State, 41 Tex. Cr. R. 300, 53 S. W. 127, 881; Collins v. State, 39 Tex. Cr. R. 441, 46 S. W. 933.

Tbe appellant asked bis witness Mr. Hafner, a jeweler; “If you, as juror, bad worn that ring or similar ring for six or eight years, and bad not seen it for several months, and was shown that or a similar ring, and there was no peculiar mark upon it, state whether or not you could undertake to identify it?” Tbe court sustained an objection to' this question. Mrs. Anderson bad positively identified tbe ring as tbe one that had been stolen from her, and the fact that another person would not be willing to so testify would not be legitimate evidence. Tbe appellant’s counsel, in presenting the case to the jury in bis argument, could present tbe fact that ber testimony was unreasonable if be so desired, and doubtless did so, but that another person would or would not be willing to so testify would be immaterial.

Tbe court in approving tbe bill excepting to tbe remarks of tbe county attorney qualifies it thus: “The county attorney did not within the bearing of the court use such language to tbe jury, nor was any exception taken to any language used by tbe county attorney except tbe following: In opening his argument tbe county attorney said that be felt that it was proper for him to warn the jury not to discuss anything in their retirement except tbe evidence introduced on tbe trial of tbe case; that sometimes courts had to set aside verdicts because juries discussed matters not proper for them to discuss, and it was important for them to confine themselves to the consideration of the court’s charge and the evidence admitted before them.” Such remarks as shown by this qualification were not improper, but rather to be commended. If prosecuting officers, in language couched as is this, would call tbe attention of tbe jury to the) fact that they must not discuss or consider any fact except tbe evidence, it might prevent a number of reversals.

Tbe court’s charge on circumstantial evidence and alibi was full and in language frequently approved by this court, and it was not necessary to give tbe special charge requested in these respects.

Tbe appellant requested tbe court to charge tbe jury; “You are instructed that tbe defendant’s possession of tbe ring in July, 1910, after the alleged burglary in February, does not raise a presumption of defendant’s guilt, and you must not consider defendant’s possession of tbe same for any purpose.” This is not tbe law, and tbe court did not err in refusing to give same. The fact that appellant was found in possession of the stolen ring was a circumstance to be considered along with other circumstances in tbe case.

Tbe court instructed tbe jury: “Tbe evidence shows that tbe defendant told Frank Glasgow that tbe ring which it is claimed the defendant bad in bis possession at tbe time tbe said Frank Glasgow arrested him was bought by tbe defendant. Now, if you should believe from tbe evidence that tbe ring which was found in tbe possession of tbe defendant, if any ring was found in bis possession, was not the ring claimed to have been lost by Mrs. Anderson, or that the defendant bought said ring from any person in Hillsboro or anywhere else, or if you should have a reasonable doubt as to either of said matters, you will acquit tbe defendant and say by your verdict, ‘Not guilty.’ This paragraph is not subject to tbe criticism contained in appellant’s motion, and it presented tbe defense of appellant in an affirmative way. Tbe contention of appellant that, because it was five months subsequent to the alleged burglary when defendant was found in possession of the ring, the possession by defendant could not be considered by the jury at all is not sound. When a person is found in possession of stolen property, no matter bow long after tbe theft, that fact is admissible in evidence with other circumstances, and bis explanation of bis possession, if any is given, should be submitted to the jury, and this tbe court did in bis charge.

We have carefully reviewed each ground in tbe motion for new trial, and, while not discussing all of them, find that tbe special charges requested, or such of them as presented tbe law applicable to this case, were covered by the court in bis main charge.

Finding no reversible error, the judgment is affirmed.  