
    DIXON v. STATE.
    (Court of Criminal Appeals of Texas.
    March 29, 1911.
    Rehearing Denied April 19, 1911.)
    1. Criminal Daw (§ 1090) — Record—Questions Presented — Biles of Exceptions.
    Improper argument of the county attorney cannot be reviewed, unless preserved by a bill of exceptions, even though made ground for motion for new trial.
    [Ed. Note. — Eor other cases, see Criminal Law, Cent. Dig. § 2819; Dec. Dig. § 1090.]
    2. Larceny (§ 55) — Evidence—Sufficiency.
    In a prosecution for theft, evidence held to sustain a conviction.
    [Ed. Note. — For other cases, see Larceny, Cent. Dig. § 152; Dec. Dig. § 55.]
    3. Larceny (§ 77) — Instructions—Possession of Recently Stolen Property,
    Where a house servant, on trial for stealing a watch from a room, was not in possession of the stolen property, though the evidence showed that he had disposed of it shortly after the alleged theft, an instruction upon the presumption arising from the possession of the recently stolen property is unnecessary.
    [Ed. Note. — For other cases, see Larceny, Cent. Dig. §§ 199, 202-204; Dec. Dig. § 77.]
    Appeal from District Court, Bexar County; Edward Dwyer, Judge.
    John Dixon was convicted of theft, and appealed.
    Affirmed.
    L. W. Greenly, for appellant. C. E. Lane, Asst. Atty. Gen., for the State.
    
      
      For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key No. Series & Rep’r Indexes
    
   PRENDERGAST, J.

The appellant was convicted of the theft of a gold watch and chain on September 15, 1910, alleged to be of the value of $50 and $60, respectively. The penalty was fixed at three years in the penitentiary.

The evidence clearly establishes that several times prior to September 15, 1910,, the appellant applied to Mrs. Smith for work; that on the day before the theft he again applied, and she told him to come back the next day, when she would give him some work. He did go back the next day, some time during the morning, and she employed him to clean up her house. Smith, her husband, was a photographer. Just before she put the appellant to work in the room to clean it up, she took the watch and chain and locked it up in a wardrobe. She then put the appellant to work and went out of the room, remaining about 15 minutes; when she returned the wardrobe was open, the watch and chain, and the appellant, gone. He did not come out the front way, but went out the back; there was no other way for him to go, as shown by the testimony of the witness. No one else was in the room where the watch and chain were from the time the witness left it with the appellant therein until she returned.

On the same day the watch was stolen, the appellant sold it for $5 to another negro by the name of Bill Ball. On the same day he pawned the chain to a pawnbroker and got $5 thereon. Immediately after the theft, the appellant was suspected and the watch and chain recovered, the watch from Ball, to whom the appellant had sold it, and the chain from the pawnbroker, to whom he had pawned it. There was no question about the identity of either article. The testimony by several witnesses as to the value of the watch and chain fixed their value, the lowest at $40 and the highest at $110.

1. The court correctly defined theft and applied the law to the facts of this case. He also submitted the value to the jury, and told them that if the value was $50 or over, to find the appellant guilty of a felony, and if under $5.0, a misdemeanor, correctly giving the penalty for each. He charged on circumstantial evidence, alibi, presumption of innocence, and reasonable doubt.

2. There is no hill of exception in the record, although the motion for a new trial complains of some objectionable remarks by the county attorney. The motion itself, however, shows that the judge charged the jury not to consider them. As these matters are not presented by a proper bill, we cannot consider them, though, as the record shows, there would be no error, even if we could.

8. The motion for new trial is on the following grounds: “(1) Because the verdict and judgment are contrary to and unsupported by the evidence. (2) Because the state relied on the testimony of Bill Ball for conviction, and it was not shown that the defendant sold the watch to him. (3) Because the court erred in failing to charge on the recent possession of stolen gbods in his charge to the jury upon the law applicable to the finding of alleged recently stolen property in the possession of the accused; i. e. (4) the state relied upon the evidence of Bill Ball that he got the watch from defendant, the alleged recently stolen property, for a conviction, and the court should have instructed the jury as to the law applicable to the same.” He then makes two what he calls assignments of error: ‘‘First, because the state relied upon the testimony of Bill Ball for conviction, the said Ball claiming that he bohght the watch from appellant, and the court should have charged the jury on the law applicable to the finding of alleged recently stolen property. Second, the court erred in overruling defendant’s motion for new trial.”

None of these grounds point out any reversible error whatever in the record. The preponderance of the evidence clearly supports the conviction. The testimony of Bill Ball is positive and clear that on the day the watch was stolen he bought it from the appellant. It was afterwards, on the same day, clearly identified by the owner and delivered to him. The chain was also clearly identified by the owner and recovered from the pawnbroker to whom appellant had pawned it the day it was stolen.

Neither article was found upon the appellant. The question of his being in possession of recently stolen property was inapplicable and unnecessary to be charged in this case.

There is no error in the record, and the judgment is affirmed.  