
    SCHNEIDER v. STATE.
    (Court of Criminal Appeals of Texas.
    Feb. 26, 1913.
    Rehearing Denied May 21, 1913.)
    1. Criminal Law (§ 1090)—Necessity of Bill of Exceptions.
    A ground alleged in a motion for new trial, not verified by a bill of exceptions or evidence, cannot be considered.
    . [Ed. Note.—For other cases, see Criminal Law, Cent. Dig. §§ 2653, 2789. 2803-2822, 2825-2827, 2927, 2928, 2948, 3204; Dec. Dig. § 1090.]
    2. Larceny (§ 60)—Ownership—Evidence.
    In a prosecution for larceny of ice from a railroad company, evidence 7teM sufficient to show that the general foreman of the mechanical department of the railroad company had a sufficient special ownership in the property stolen.
    [Ed. Note.—For other cases, see Larceny, Cent. Dig. §§ 156-158; Dec. Dig. § 60.]
    3. Criminal Law ■(§ 922) — Exceptions — Time.
    An exception to the refusal to charge on circumstantial evidence in a misdemeanor case comes too late when made for the first time on a motion for new trial. '
    [Ed. Note.'—For other cases, see Criminal Law, Cent. Dig. §§ 2210-2218; Dec. Dig. § 922.]
    Appeal from McLennan County Court; Tom L. McCullough, Judge.
    Harry Schneider was convicted of larceny, and he appeals.
    Affirmed.
    J. P. Alexander and Williams & Williams, all of Waco, for appellant. C. E. Lane, Asst. Atty. Gen., for the State.
    
      
      For other eases see same topic and section NUMBER in Deo. Dig. & Am. Dig. Key-No. Series & Rep’r Indexes
    
   DAVIDSON, P. J.

This is a misdemeanor theft. Appellant was given one day in the county jail.

Appellant in his motion for.new trial insists that the verdict is contrary to the law, in that it was rendered by a jury composed of only five men, and was not signed by each juror, but was signed by only one. It is unnecessary to notice this question other than to state that this is not verified by a bill of exceptions or evidence, but is simply alleged as a ground of the motion.

The second ground alleges the insufficiency of the evidence, in that it fails to show that the property alleged to have been stolen was in the possession of the alleged owner, Miller. We are of opinion that the evidence on this question is sufficient to show the special ownership in Miller. His testimony is to the effect that he was the general foreman of the mechanical department of the railroad company, and in such office he had charge of the property of the company. He recalled the incident of the arrest of appellant for the theft of ice from the Union Depot; that he had possession of what belonged to the International & Great Northern, had charge of the property of the Cotton Belt International & Great Northern and Santa Fé that comes into Waco, and “makes arrangements for icing the trains.” The evidence further shows that the ice was brought by one of the employés of the ice company every morning for the train and placed at said point, and on the particular morning in question appellant sent a negro to get the ice, and was putting it in an ice box, evidently for the purpose of keeping cool some soda water bottles. Mr. Miller’s testimony is that he was the special owner of the property; at least, until it had been taken on board the train and passed into the possession of the management of the train. At the time appellant got it, it had not been carried into the train. Appellant, who was a newsboy or train “butch,” sent a negro out, got the ice, and took if for his own purposes. There seems to be no evidence to the contrary, so far as ownership is concerned.

It is insisted the court erred in not charging on circumstantial evidence. This is a misdemeanor. No special charge was asked by appellant, and the only exception taken was in the motion for new trial. This, under the rulings with reference to misdemeanors is not sufficient, and cannot be considered.

Appellant gave an explanation or made a statement in regard to the matter which would show that he had bought the property the evening before to be delivered the morning he sent the negro to get it. This was controverted toy the state, and the circumstances were sufficiently strong to sustain the jury’s verdict in finding his statement was not true. In other words, on this question it was a fact case, and the jury solved the question adversely to appellant. We do not feel justified under the evidence in reversing the judgment on the ground it does not support the verdict.

The judgment is affirmed.  