
    SUGGS v. STATE.
    (Court of Criminal Appeals of Texas.
    Jan. 24, 1912.)
    1. LARCENY (§ 32) — 'OWNERSHIP OF PROPERTY — AlXEGATION.
    Where one person owns the property stolen, and another has the lawful possession and control thereof, the ownership may be alleged in either.
    [Ed. Note. — For other cases, see Larceny, Cent. Dig. §§ 81-92, 99; Dec. Dig. § 32.]
    2. Criminal Law (§ 784) — Evidence—Instructions.
    Where, on a trial for the larceny of money, the evidence showed that the prosecutor, had the money in a drawer in an office, which was locked, that accused asked for the key to the office to procure clothing therein, that prosecutor gave him a bunch of keys containing the key to the office and to the drawer, that accused left on the next train after going into the office, that prosecutor on going into the office missed the money, a ragged 85 bill, that he wired the conductor of the train on which the accused was riding, and that the conductor secured a ragged $5 bill from accused, identified by prosecutor, a charge on circumstantial evidence was warranted.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 1883-1888, 1922, 1960; Dec. Dig. § 784.]
    3. Criminal Law (§§ 763, 764) — Instructions — Weight oe Evidence.
    A charge, on a trial for larceny, that possession of recently stolen property may be proved by circumstantial evidence under the rules governing circumstantial evidence, is not objectionable as on the weight of the evidence.
    [Ed. Note. — For other cases, see Criminal Law," Cent. Dig. §§ 1731-1748; Dec. Dig. §§ 763, 764.*]
    4. Criminal Law (§ 823) — Instructions— Cure by Other Instructions.
    Where the court charged that the state must show that accused was in possession of the stolen property, and that on the failure of the state to so show beyond a reasonable doubt accused must be acquitted, and that if accused’s explanation of his possession was reasonable he must be acquitted, a charge that possession of recently stolen property could be proved by circumstantial evidence was not prejudicial.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 1992-1995; Dec. Dig. § 823.]
    5.Larceny (§ 55) — Evidence—Sufficiency.
    Evidence held to support a conviction of larceny.
    [Ed. Note. — For other cases, see Larceny, Cent. Dig. §§ 152-169; Dec. Dig. § 55.]
    Appeal from Taylor County Court; T. A. Bledsoe, Judge.
    Will Suggs was convicted of theft, and he appeals.
    Affirmed.
    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
    
   HARPER, J.

Appellant was charged with the theft of 85 in money, was convicted, and his punishment assessed at a fine of $100 and 30 days’ imprisonment in the county jail.

The first two grounds in the motion for a new trial relate to the same matter. John Thompson was alleged to be the owner of the money alleged to be stolen. Thompson was agent of the Abilene & Southern Railway Company at Bradshaw. The money was in fact the property of the railway company, but was in the exclusive control and custody of Thompson as agent of the railway company. The court correctly instructed the jury that where one person owns the property, and another has the possession, charge, and control of same, the ownership may be alleged in either. Bailey v. State, 18 Tex. App. 426, and cases collated under subdivision 4 of section 1483, White’s Ann. Penal Code.

The court charged the jury on circumstantial evidence, and appellant complains of this charge; not that there is any error in the charge, but that it was not a case of circumstantial evidence. The evidence would show that Thompson had the money in a drawer in the ticket office; that the office was locked, and appellant asked for the key, claiming he wanted to get some clothing out of his grip in the office. Thompson gave him his bunch of keys, containing both the key to the office and to the drawer in which the money was contained. Appellant left on the next train after going in the office. When Thompson went in the office and unlocked the drawer, he missed the money, a ragged $5 bill. He wired the conductor on the train on which appellant was riding. The conductor secured a ragged 85 bill from appellant on the train. Thompson does not swear positively this is the bill, but picks it out as the bill when mixed up with six other 85 bills, saying:' “I cannot swear positively that this is the bill that was taken from my possession at Bradshaw oh June 11, 1911; but it looks like it fits the description of the bill that was taken, and is the only one among the lot of bills that I have examined that does fit the description. The others are tom in the center, but in a different way from the bill that was taken from my possession. I could not swear positively that this is the bill; but it looks more like it.” It was proper for the court to charge on circumstantial evidence, and under the evidence here recited, and the other evidence in the case, the evidence is sufficient to support the verdict.

The appellant complains of the following paragraph of the court’s charge: ‘‘You are charged that possession of recently stolen property may be proved by circumstantial evidence, under the rules governing circumstantial evidence as defined in the charge given you in this case governing circumstantial evidence” — the objection being that this charge is upon the weight of the evidence. This paragraph is not subject to that criticism, and the charge could not be hurtful, when the court instructed the jury, at the request of defendant: “You are charged that the state would be required to show by evidence that the defendant was in possession of the $5 bill which was stolen from John Thompson on the date alleged in the complaint, and in the event you should find that the state has not shown this beyond a reasonable doubt, you will acquit defendant” —and, further: “In this case you are charged that, if you believe from the evidence that the defendant’s explanation of his possession of the bill in evidence is reasonable and probably true and comports with his innocence, you will acquit the defendant.”

The other complaint relates to the insufficiency of the evidence. As before stated, the state’s case presents a strong case of circumstantial evidence. If the state’s witness Thompson is to be believed, no other person had an opportunity to abstract the bill from the drawer. Defendant alone borrowed the key. The money was in the drawer when he borrowed the key and went in the office. The money was missing when Thompson went back in the office. He was found in possession of a bill looking like the one stolen, and, taken as a whole, it presents a strong case. Of course, defendant denied the offense; but this was a question for the jury, and they determined it against him.

Judgment affirmed.  