
    TILLMAN v. STATE.
    (No. 5910.)
    (Court of Criminal Appeals of Texas.
    Oct 20, 1920.
    Rehearing Denied Nov. 24, 1920.)
    1. Criminal law &wkey;365(l) — Another offense held admissible as part of the transaction.
    The securing of whisky by defendant, bell boy in an hotel, for H., a guest, admissible for prosecution for theft of money from H.’s room, even if constituting another offense, as so intimately connected with the transaction as to be part of it.
    2. Larceny <&wkey;50 — Evidence • as to finding of stolen property held admissible.
    Where H., guest in a hotel, missed some money from his room after defendant, a bell boy, and a woman had left it, the delivery of the money to H. by the woman, on defendant conducting him to her room, is admissible on prosecution for the theft.
    3. Criminal law <&wkey;l 144(12) — Admission of confession presumed correct in absence of showing in bill of exceptions.
    The court’s ruling, admitting defendant’s confession, must be presumed correct; the bill of exceptions not showing conditions rendering it inadmissible.
    4. Criminal law <&wkey;l09f(8) — Bil! of exceptions held not to show reference in argument to any failure of defendant to testify.
    No indirect reference by state’s counsel in argument to defendant’s failure to testify is shown by bill of exceptions, reciting that said counsel, after stating that H. testified to a confession by defendant, continued: “No one has denied this. Now, how are you * * * going to say H. is not telling the truth”— it not affirmatively showing that defendant did not testify, nor negativing the fact that there were others present.
    5. Criminal law t&wkey;784(3) — There being evidence of a definite confession, charge on circumstantial evidence not necessary.
    The- confession of defendant, testified to, being definite, no charge need be given on the law of circumstantial evidence.
    6. Criminal law <@=>792(2) — Charge on law of principals held justified by facts.
    The facts justify a charge on the law of principals, on a prosecution for theft, there being evidence that H., in defendant’s presence, took some money from a roll between the mattresses of his bed and gave it to defendant, 'that defendant returned with a woman, and, after they left, the roll was missing, that defendant then found took H. to the woman’s room, and she returned the money, and defendant confessed.
    Appeal from Criminal District Court, Dallas County; C. A. Pippen, Judge.
    Sam Tillman was convicted of theft, and appeals.
    Affirmed.
    M. L. Littleton and John T. Spann, both of Dallas, for appellant.
    Alvin M. Owsley, Asst. Atty. Gen., for the State.
   MORROW, J.

The appellant was convicted of theft, and punishment fixed at confinement in the penitentiary for four years.

The injured party, Holloway, occupying a room in one of the hotels at Dallas, rung for a bell boy. The appellant responded, and was requested by Holloway to bring a woman to his room, and also some sandwiches, a bottle of milk, and a pint of whis-ky. Holloway gave appellant some money which he took from between the mattresses, where he had a roll of money containing about $900. Appellant returned with the articles named, accompanied by the woman. She remained for a time. Appellant returned, and he and the woman left together. Soon after, Holloway missed his money. He found the appellant in the lobby of the hotel, and was told by him that he did not have, the money, but he accompanied Holloway to the woman’s room, where she surrendered part of it, together with a diamond which ivas taken at the same time. Later, the appellant admitted to Holloway that he had taken the property.

It is not clear that under the law in force at the time there was any offense committed in securing the whisky for Holloway. Even if it was otherwise, we think that it was so intimately connected with the transaction as to be part of it, and to render its admission in evidence not improper. Walling v. State, 55 Tex. Cr. R. 254, 116 S. W. 813; Watts v. State, 75 Tex. Cr. R. 330, 171 S. W. 202.

The delivery of the money to Holloway by the woman when appellant conducted Holloway to her room was properly admitted. At the time that the appellant told Holloway that he had taken the property, he is not shown to have been under- arrest and in custody, nor are any circumstances developed, we think, which rendered his declaration inadmissible in the absence of warning. Certainly no such conditions aré disclosed by the bill of exceptions, and we must presume the ruling of the trial court correct unless the contrary appears from the bill of exceptions. Manning v. State, 51 Tex. Cr. R. 214, 98 S. W. 251; Williams v. State, 53 Tex. Cr. R. 3, 108 S. W. 371; Branch’s Ann. Texas Penal Code, § 62.

The bill complaining that state’s counsel in his remarks made an indirect reference to the appellant’s failure to testify, when he used the language: “He took the negro in the woman’s room and he then and there said: Wes, I did it.’ No one has denied this. Now, how are you good men going to say Mr. Holloway is not telling tlie truth” — does not show error, for the reason, among others, that it does not affirmatively show that appellant did not testify, nor negative the fact that there were others present. Ross v. State, 40 Tex. Cr. R. 353, 50 S. W. 336; Branch’s Ann. Texas Penal Code, §§ 209 and 210. Moreover, we gather from the statement of facts that at the conversation which took place in the woman’s room there was a policeman present. If this is a correct interpretation of the evidence, then the jury could have drawn no such inference as that contended for. Pickrell v. State, 82 Tex. Cr. R. 68, 198 S. W. 303; Ethridge v. State, 74 Tex. Cr. R. 635, 169 S. W. 1152. We note, also, that it appears affirmatively from the statement of facts that the confession of the appellant was not made in the woman’s room, but was made later, and at a different place; whether while they were alone not being disclosed.

The confession of the appellant being definite, it was not incumbent upon the court to charge upon the law of circumstantial evidence. Smith v. State, 28 Tex. App. 315, 12 S. W. 1104; Branch’s Ann. Texas Penal Code, § 1874.

The facts, we think, were such as to justify a charge on the law of principals.

From what has been said it follows that the judgment should be affirmed. 
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