
    MORGAN v. STATE.
    (No. 8164.)
    (Court of Criminal Appeals of Texas.
    April 30, 1924.
    Rehearing Denied May 28, 1924.)
    1. Larceny &wkey;>40(9) — Proof as to ownership of stolen goods held not at variance with charge.
    Proof of theft of automobile from son of owner alleged in indictment, who was driving it with owner’s permission, held not insufficient to sustain conviction on ground of variance.
    2. Criminal lav; i&wkey;>l056(l), 1086(14), 1090 (14) — Refusal of charge not reviewable in absence of notation, exception, or bill of exceptions.
    The mere request for a special charge is insufficient to warrant review of court’s denial of it in absence of either a notation thereon of taking of exception to such denial or special bill of exceptions complaining of same.
    3. Criminal law t&wkey;622(l) — Court’s duty and power in matter of severance not affected by juvenility of either party.
    , Under Code Or. Proc. 1911, art. 727, upon request for severance by each of parties jointly indicted, it is the court’s duty to direct the order of trial, which duty and power is not affected by the juvenility of one of the parties.
    4. Larceny <&wkey;55 — Evidence held to sustain conviction.
    , Evidence held to sustain conviction of larceny of automobile.
    <§rroFor other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes
    Appeal from District Court, Taylor County; W. R. Ely, Judge.
    Clifford Morgan was convicted of theft of an automobile, and he appeals.
    Affirmed.
    Mays & Mays, of Port Worth, for appellant.
    Tom Garrard, State’s Atty., and Grover C. Morris, Asst. State’s Atty., both of Austin,, for the State.
   DATTIMORE, J.

From conviction of theft of property of the value of more than $50, in the district court of Taylor county, with punishment fixed at two years in the penitentiary, this appeal is taken.

Appellant was charged with theft of an automobile belonging to J. T. Haney. The proof showed that Mr.. Haney lived in Abilone, and his minor son, who lived with him, had driven Mr. Haney’s car on the night in question down to a picture show, from which place the car was taken between 8 and 9:30 p. m. Upon the trial, after the evidence was closed, a motion . setting up these facts and asserting á variance between the allegation and proof was presented, asking an instructed verdict of not guilty. We think it properly refused. The exact point involved has been decided against appellant. Jackson v. State, 41 Tex. Cr. App. 85, 79 S. W. 521, 80 S. W. 631; Wright v. State, 35 Tex. Cr. R. 470, 34 S. W. 273. Frazier v. State, 18 Tex. App. 434, is cited by appellant on this point. In the opinion in that case, as illustrating the view of this court, Judge White says:

“Suppose A. loans his horse to. his son or servant to ride,-or he sends them on the horse on his business, temporarily to town or church, and the horse is taken. In such case the possession is in A., and it is unnecessary to allege that the horse was taken from the son or servant, because their control and possession was simply subordinate to the superior possession of A.”

We know of no case -holding contrary to this. Such being the law, the motion was properly refused, as wa's the request of appellant that the issue be. specially submitted to the jury.

In this connection, and because 'the question is urged in appellant’s brief, we observe that a special charge asked by the accused and refused will not be considered by this court unless there appear some notation upon same of the fact that its refusal is excepted to, or else there be a separate bill of exceptions complaining of the refusal of such charge. The mere asking of a special charge is not tantamount to an exception to its refusal. Exception to such refusal must in fact be taken and that fact made known to this court. The only two ways by which we can know it are by some notation made thereon by the trial judge or by a separate bill of exceptions presenting such fact. In the case before us we have considered the matter as being sufficiently presented in bill of exceptions No. 1, but have made the above observation in view of appellant's position that the contrary is the rule.

The only other bill of exceptions in the record complains of the refusal of a severance-asked by appellant. From the record we learn that he and one Adkins were jointly indicted for this theft^and that each filed a request for severance. Tliis being true, under the terms of article 727, C. C. P., it be, came the duty of the trial court to direct the order in which the cases be tried. The ju-venility vel non of appellant’s codefendant would have no effect on the duty and power of the trial judge. Nor are we able to see how it could affect the soundness of his action in directing that appellant be first tried.

We regret our inability to agree with appellant’s contention that the evidence is insufficient. He and the boy mentioned were in possession of the alleged stolen car going east on a road from Abilene to Fort Worth at the time of their arrest near Weatherford on thé day following the night of said theft. They were 132 miles from Abilene, at which place the car had been taken the night before. No explanation of their possession is offered. Other testimony shows the two defendants together in Fort Worth a day or two before the disappearance of the car in Abilene and that they left Fort Worth together to go to Abilene.

Finding no error in the record, an affirmance will be ordered.

On Motion for Rehearing.

Appellant files a' lengthy motion for rehearing. He does not seem to comprehend our former opinion. We did consider his bill of exceptions No. 1 taken to the refusal of his special charge, and so stated in our opinion. We do not need to discuss this matter further. No authorities are cited in support of appellant’s only other contention, which is in regard to the refusal of his application for severance. The statute so plainly directs that when both parties to a transaction, who may be indicted either separately or jointly, file application for severance, it becomes the duty of the court to direct the order of trial, that we do not see what more could be said upon the subject.

The motion for rehearing will be overruled.  