
    GARSEE v. STATE.
    (No. 8053.)
    (Court of Criminal Appeals of Texas.
    Jan. 9, 1924.
    Rehearing Denied Feb. 20, 1924.)
    1. Criminal law <&wkey;1095 — Statement and exceptions filed after time allowed stricken.
    Where the statement of facts and bills of exception were filed after the time allowed by the court, and there is no order extending the time in the record, the statement and exceptions will be stricken out on motion by the state.
    On Motion for Rehearing.
    2. Criminal law &wkey;»l 169(6) — Admission of evidence as to value of stolen car held not prejudicial.
    In a prosecution for the theft of an automobile, admission of testimony, of the owner as to the sum he gave for it and its value at the time it was taken, if erroneous, did not injure defendant, where the jury gave him the lowest penalty for the crime, and the evidence amply supported his' guilt.
    3. Witnesses <&wkey;359 — Where defendant admits former indictment, the indictment itself need not be produced.
    In a prosecution for theft, that a bill of indictment was not produced before defendant was asked while on the witness stand if he had been indicted for felony did not constitute error, where the witness admitted that he had been so indicted.
    4. Criminal law i&wkey;>598(2) — Not error to refuse continuance for absent witness.
    The court did not err in refusing to grant a continuance for absent witnesses, where one of the witnesses was present, but was not placed on the stand, and the presence of another witness could have been secured during trial without difficulty, and no effort was made to secure the deposition of a witness who lived at a distance and whose testimony, if offered, would not have been admissible.
    5. Criminal law <&wkey;730(l), 1171 (I) — Improper argument of prosecuting attorney held not reversible error, in view of court’s action, evidence, and law penalty.
    That the argument of prosecuting attorney was improper did not constitute reversible error, where the court on motion of defendant instructed the jury not to consider such argument, and the testimony was overwhelmingly sufficient, and defendant received the lowest penalty for the crime.
    6. Larceny <&wkey;55 — Evidence held to sustain conviction.
    In a prosecution for the theft of an automobile, evidence AeM to sustain conviction.
    Appeal from District Court, Jefferson County; Geo. C. O’Brien, Judge.
    Lee Garsee was convicted of theft, and he appeals.
    Affirmed.
    Howth & O’Eiel and Lamar Hart, all of Beaumont, for appellant.
    Tom Garrard, State’s Atty., and Grover C. Morris, Asst. State’s Atty., both of Austin, for the State.
   LATTIMORE, J.

Appellant was convicted in the district court of Jefferson county of felony theft, and his punishment fixed at two years in the penitentiary.

The facts sufficiently support the judgment of guilty, and will not be set out at length. Appellant was tried at the March term of the Fifty-Eighth Judicial district court at Beaumont. His motion for new trial was overruled on April 8, 1923. As part of the order overruling said motion the court allowed 90 days from, said date in which to file statement of facts and bills of exception. There are six bills of exception, each of which appears to have been filed on July 25th. No order is in the record extending the time for filing such bills. The Assistant Attorney General moves to strike out the bills of exception because filed too late. The motion must be granted. The indictment is in regular form, and the charge of the court seems to sufficiently present the law of the case. Exceptions were prepared and presented to the charge of the court, but, in view of certain requested charges which were given, there is nothing in the exceptions.

No error appearing, an affirmance will b& ordered.

On Motion for Rehearing.

On the original presentation of this case the order overruling appellant’s motion for new trial and granting time in which to file bills of exception appearing to be of date April 8, we concluded the bills of exception not filed in time, and declined to consider them. The matter is properly before us now upon a certified copy of said order showing it to have been entered on April 28th. Conceding the correctness of this, the bills of exception were filed within time, and are now considered.

We are in serious doubt as to whether the exceptions taken to the charge of the court point out sufficiently any part thereof regarded" as objectionable; our statute requiring that the exceptions point out the specific part of the charge complained of; giving consideration to the exceptions, however, we observe that the charge on recent possession of the alleged stolen property by the appellant, and as to whether his explanation thereof was reasonable and sufficiently accounted for his possession, in our opinion is not on the weight of the testimony and not open to the exceptions taken.

There is an exception to the testimony of the owner of the alleged stolen car to the fact that he paid $3,050 for it. There was no issue made that the value of the alleged stolen automobile was less than $50. It showed to be a Studebaker sedan which had been used some months before the alleged theft. The admission of the testimony of the owner that he gave the above-mentioned sum for it, and that it was worth $1,850 at the time it was taken, if erroneous, would seem to be incapable of any conclusion of injury, the jury having given appellant the lowest penalty, and the evidence amply supporting the fact of his guilt. The alleged 3'vvner testified that the car would have brought $1,850 in. the market at the time.

With reference to the bill complaining that the appellant was asked while on the witness stand if he had not been indicted for a felony, we observe that the rules do not require that the bill of indictment be produced in the first instance. If the witness admit that he has been so indicted, this meets the object of the inquiry. If he denies it, then the state would be relegated to the production of the best evidence. The testimony was admitted evidently for the purpose of affecting the credibility of the appellant as a witness.

In his qualification to the bill of exceptions complaining of the refusal of appellant’s application for a continuance, it is made to appear that Deputy Sheriff Woods, one of the witnesses named in the application, was present and testified, and that appellant’s grandmother was present, but was not placed on the witness stand, and that Mr. Storm, another witness named, lived at Port Arthur, which was in the same county as that of the trial, and connected with Beaumont by hourly trolley service, and that no effort was made during the trial to obtain the presence of said witness. Dad Brown, the other witness named, lived in Louisiana, and no effort was made to obtain his deposition, but his testimony appeared to be only a narration of statements made by appellant’s codefendant Fears, and such testimony, if offered, would not appear to be admissible. There is the further statement in this connection that appellant had been brought into open court some time prior to the trial, and had then made no statement of his desire for the witnesses named.

The bill of exceptions complaining of >■ the argument of the state’s attorney is qualified with the statement that when the argument was made there was no exception nor objection of any kind, and that, after the state’s attorney had concluded his argument, appellant presented a special charge, which the court promptly gave, instructing the jury not to consider such argument. The argument was improper, but, in view of the overwhelming Sufficiency of the testimony, and the fact that appellant received the lowest penalty, it is manifest that the improper character of the argument would not justify this court in reversing the case on that ground.

The ear of Mr. Absher was taken in Port Arthur, Jefferson county, Tex., on the 25th day of November, 1922, some time about 8 o’clock at night. The next morning appellant, accompanied by a boy named Fears, was, found in possession of the car in De Bidder, La. According to the testimony of Mr. Woods, when questioned with regard to the car, appellant said that it was his, ánd that he lived in Dallas, Tex. Appellant’s testimony as given upon the trial sought to lay the blame for the taking upon young Fears, who had pleaded guilty and gone to the Boys Training School at Gatesville. The charge of the court sufficiently stated the law of the ease, and the facts amply supported the conclusion of guilt.

The motion for rehearing will be overruled. 
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