
    HATFIELD v. STATE.
    (Court of Criminal Appeals of Texas.
    May 1, 1912.
    Rehearing Denied May 22, 1912.)
    1. Criminal Law (§ 1091) — Bill of Exceptions — Evidence.
    In a prosecution for theft, one of the bills of exceptions showed that, while the prosecuting witness was being examined, he was asked whether he and his son were partners, or whether the goods stolen belonged to the witness individually, that defendant objected, on the ground that it called for the conclusion of a witness and was highly prejudicial to defendant’s rights, and that the witness answered that the goods belonged to him individually, and not to him and his son. Another bill stated that the son was asked whether he and his father were partners, and whether it was not a fact that the witness had no interest in the stock from which the goods were taken, but that they belonged' to the father individually,, which was objected to for the same reasons as above; that the court overruled the objections. Se Id, that such bills were not sufficient to render intelligible the ruling excepted to.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2803, 2815, 2816, 2818, 2819, 2823, 2824, 2828-2833, 2843, 2931-2933,. 2943; Dec. Dig. § 1091.]
    2. Criminal Law (§ 448) — Evidence—Conclusion oe Witness.
    In prosecution for theft, a question, asked of the prosecuting witness, as to whether he and his son were partners in the mercantile business from which the goods were taken, or whether the goods belonged to the witness in•dividually, was not objectionable as calling for the conclusion of the witness.
    . [Ed. Note. — For other cases, see Criminal Law, Cent.'-Dig. §§ 1035-1039, 1041-1043,1045, 1048-1051; Dec. Dig. § 448.]
    3. Larceny (§ 59) — Value of Property-Evidence.
    Where, in a prosecution for larceny of certain gloves, the prosecuting witness testified that defendant thereafter admitted taking them and paid him $1.75 for them was sufficient proof of value to justify the refusal of the charge that the state had failed to prove the value of the gloves, necessitating a verdict of not guilty.
    [Ed. Note. — For other cases, see Larceny, Cent. Dig. §§ 154, 155; Dec. Dig. § 59.]
    4. Larceny (§ 40)— Ownership — Partnership.
    Under Code Cr. Proe. 1911, art. 457, providing that, where property stolen is owned in common or jointly by two or more, the ownership may be alleged in all or either of them, proof that property stolen belonged to a partnership was sufficient to sustain a conviction, though it be alleged to belong to one of the individual members of the firm, and vice versa.
    [Ed. Note. — For other cases, see Larceny, Cent. Dig. §§ 102-126, 160; Dec. Dig. § 40.]
    Appeal from Hood County Court; J. P. Mahan, Judge.
    Earnest Hatfield was convicted of theft, and he appeals.
    Affirmed.
    H. D. Payne, of Ft. Worth, and John Davenport, of Granbury, for appellant. C. E. Lane, Asst. Atty. Gen., for the State.
    
      
      For other oases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key No. Series & Rep’r Indexes
    
    
      
      For other cases see same topic and section NUMBER in-Dec. Dig. & Am. Dig.- Key No. Series & Rep’r Indexes
    
   PRENDERGAST, J.

Appellant was charged and convicted of the theft of one pair of gloves, of the value of $1.75, the property of one Tolbert. His penalty was fixed at a fine of $5 and five days in jail.

Appellant has two bills of exceptions. The first shows that, while the prosecuting witness Tolbert was on the stand, he was asked by the county attorney; “Were you and your son, Jasper, partners in the mercantile business, or did the goods belong to you individually from which the gloves were taken?” Appellant objected to this, on the grounds that it was a conclusion of the witness and highly prejudicial to the rights of appellant; that he should have been required to state the facts, and not conclusions. It seems that he answered that the gloves belonged to him individually, and not to him and his son. This is substantially all of the bill. The other bill shows that, while the state’s witness Jasper Tolbert was on the stand, the county attorney asked him: “Were you and your father partners in the mercantile busines; and is it not a fact that you were not partners, but you had no interest in the stock of goods from which the gloves in controversy were taken, but they belonged to your father, J. P. Tolbert, individually?” Appellant objected, on the grounds, first, it was only a conclusion of the witness that he and his father were not partners; second, it was highly prejudicial to the rights of appellant, and that he should be permitted to state the facts, and not his conclusions or deductions. The court overruled the objections, and permitted witness to testify that the stock of goods from which the gloves were taken belonged to his father, and there was no partnership; that witness did not have a cent invested in the stock of goods; that he worked for his board and clothes and spending money; that the stock of goods from which the gloves were taken belonged to his father, and he had no interest in them. This is the whole, in substance, of this bill. It is seen by these bills that neither of them are sufficient to require this court to consider them. Conger v. State, 140 S. W. 1121. But, even if we could consider these bills, the questions asked and the answers given were not subject to the objections made; and, even if they were, they do not present reversible error, as we will show in discussing other features of the case.

Appellant requested a charge, which was refused, to which he excepted, to the effect that the state failed to prove the want of consent of the owner to the taking of the gloves, and to acquit the defendant. This should not have been given, because the complaining witness Tolbert, to whom the gloves were alleged to belong, expressly testified, “I did not give my consent to the taking of the gloves.”

Appellant also requested a charge, which was refused, to which he excepted, to the effect that the state failed to prove the value of the gloves, alleged to have been stolen, and to find the defendant not guilty. The uncontradicted proof shows that soon after the gloves were taken from the store of the complaining witness, and they were missed, appellant was seen with them, and he claimed to one of the state’s witnesses that he had bought the gloves from Tolbert & Son. To Jasper Tolbert, the son of the complaining witness, he first denied that he had any gloves. A little later he came to the store and paid for the gloves, and said it was the first time he had ever done such a thing, and asked that nothing be said about it. To the complaining witness, he admitted that he had the gloves, and said he would pay for them, and this was the first time he had ever done like this, and he did not want them to tell his father or mother about it. Jasper Tolbert testified that the appellant did pay him $1.75 for the gloves at the time he came to the store, and stated what is shown above. Another witness claims to have been present, and testified to the same thing. It is true that the only proof of the value of the gloves was that, after he had admitted he had taken them, he paid to the owner $1.75 for them. This evidence was sufficient to prevent the court from giving the said special charge which was refused.

The court in his charge, to which there is no objection, specifically tells tbe jury, among other things, that by fraudulent taking is meant that the property was taken without the consent of the owner; and, again, that the state must prove the taking of the property as alleged, and when it fails to do so defendant is entitled to an acquittal. He also properly charged reasonable doubt.

Appellant complains of the court’s refusal to give his special charge, to which he properly excepted, to this effect: “X charge you, at the request of the defendant, that, although you may believe, beyond a reasonable doubt, from the evidence, that Earnest Hatfield did take’and appropriate one pair of gloves, so as to come within the definition of theft, as that term is herein defined, yet, if you should believe that these came from the stock in front of which was a sign of J. P. Tolbert & Son. and w&s a part of that stock, and that Jasper Tolbert was held out to the commercial world by this sign and statements made to creditors, then these gloves so taken would be the property of J. P. Tolbert & Son. a partnership, and you must acquit, although you believe, beyond a reasonable doubt, that defendant took them and appropriated them to his own use and benefit.” Our statute (article 457, C. O. P.) expressly provides: “ * * * Where property is owned in common or jointly by two or more persons, the ownership may be alleged to be in all or either of them. * * * ” Under this statute, the settled law of this state is that proof that A. was a joint owner and possessor with others of the stolen property will support the allegation of the indictment which laid the ownership and possession in him only. It is also the settled law of this state that, where the indictment, or complaint and information, alleges ownership in one of the parties of a partnership, and the proof shows that it belonged to the partnership, of which he is a partner, there was no variance between the allegation and the proof; and the court could properly charge the jury that the state need not prove want of consent, except as to the party in whom ownership is laid. Coates v. State, 31 Tex. Cr. R. 257, 20 S. W. 585; Clark v. State, 26 Tex. App. 486, 9 S. W. 767; Crockett v. State, 5 Tex. App. 526; Henry v. State, 45 Tex. 84; Terry v. State, 15 Tex. App. 66; Atterberry v. State, 19 Tex. App. 401; Samora v. State, 4 Tex. App. 508; Pitts v. State, 14 S. W. 1014; Duncan v. State, 49 Tex. Cr. R. 150, 91 S. W. 572; Bailey v. State, 50 Tex. Cr. R. 402, 97 S. W. 694. So that, even if it had been proven that Jasper Tolbert was a partner with the complaining witness, the court charged correctly, and correctly refused to give appellant’s said special charge.

We have discussed and decided all the material questions raised by appellant. The others attempted to be raised by the motion, for new trial — some complaints of the charge of the court — cannot be considered, because there is no bill of exceptions to the charge of the court, and the complaints in the motion for new trial are so general as not to call for any review of them by this court.

The judgment will be affirmed.  