
    JOINER v. STATE.
    (No. 6274.)
    (Court of Criminal Appeals of Texas.
    June 1, 1921.
    State’s Rehearing Denied June 24, 1921.)
    1. Bail <&wkey;72 — Filing of new appeal bond cured defective bond.
    A motion to dismiss an appeal in a criminal case because of a defective appeal bond will be 'overruled, where it appears that after being notified of the condition of the appeal bond a new bond was made' by accused in accordance with statute and was properly certified to and filed with the clerk of the appellate court.
    2. Witnesses <&wkey;48(I)— Escaped convict should not be permitted to testify over objection. .
    In a criminal prosecution, a witness for the state, who admitted that he was an escaped convict and had never been pardoned, was erroneously permitted to testify over defendant’s objection.
    3. Criminal law &wkey;922(7), 1038(3), 1056(1)— Failure to charge as to accomplice testimony not reversible error nor ground for new trial in absence of exceptions or request.
    Failure to charge as to accomplice testimony is not reversible error, unless there is an exception to the instructions given for such failure, or there is a refusal of a special charge submitting such issue, and the matter cannot be raised upon motion for new trial or appeal for the first time.
    4. Criminal law >&wkey;338(4, 5) — Conduct of third parties out of presence of accused inadmissible.
    It is not proper in a criminal prosecution to permit the admission of evidence of acts of persons other than the accused not in the presence or hearing of the accused.
    5. Criminal law <®=>338(4, 5) — Evidence of other thefts with which defendant was not connected held inadmissible.
    In a prosecution for receiving and concealing stolen property, it was improper to permit the alleged thief to testify over objection that he had broken into other stores than the one from which the goods in question were taken, where accused was not connected with such other thefts and did not contend that the property in question was not stolen by the alleged thief.
    6. Receiving stolen goods &wkey;>9( I) — Whether person buying expensive dress cheaply knew it was stolen held for jury.
    In a prosecution for receiving and concealing stolen goods, court did not err in refusing a peremptory instruction, where the proof showed that for §11 accused bought a new silk dress worth $42.50, which had never been worn or used and was brought to her house by a negro in a handbag, he having been to her house before with other articles, and when the dress was found by the officers in her home it was taken from an ice chest.
    Appeal from Williamson County Court; F. D. Love, Judge.
    Nioma Joiner was convicted of receiving and concealing stolen property, and appeals.
    Reversed and remanded.
    W. C. Wofford, of Taylor, for appellant.
    Dan Moody, Co. Atty., of Taylor, and R. H. Hamilton, Asst. Atty. Gen., for the State.
   LATTIMORE, J.

Appellant was convicted in the county court of Williamson county of receiving and concealing stolen property, and her punishment fixed at one day in the county jail and a fine of $10.

A motion to dismiss the appeal because of a defective appeal bond will be overruled, inasmuch as it appears that after being notified of the condition of said appeal bond, a new bond was made by appellant in accordance with our statute, which was properly certified to and filed with the clerk of this court, and same will be incorporated in and made a part of the record in this case.

Appellant was charged with receiving from one Parrish a certain dress of the value of $15 which had theretofore been acquired by one Holts in such manner as that its acquisition was theft. Holts or Holt was introduced as a witness for the state, and testified that he had been brought to the county of the forum from the county jail in Bastrop by the officers. On cross-examination by appellant he admitted himself to be an escaped convict, stating that he had never been pardoned. Appellant thereupon objected to his testimony, which objection was overruled, and he was permitted to further testify. The objection should have been sustained. Corzine v. State, 226 S. W. 686.

Holts and Parrish were both shown to have been criminally connected with the alleged stolen property in such way as to make theirs fall within the rule .of accomplice testimony. Failure to charge as to such testimony is not reversible error unless there be an exception to the instructions given for such failure, or there be refusal of a special charge submitting such issue, neither of which appears in the instant case, and the matter cannot be raised upon motion for new trial, or in this court for the first time.

Witness Parrish testified that said Holts left various suit cases filled with stolen goods at the home of one Ricks, who knew said goods were stolen. We do npt think the particular objection to this evidence which was made by appellant was sufficient, but in view of another trial we observe that the knowledge of Ricks of the stolen character of said goods does not appear material or binding upon this appellant; and it would appear to be res inter alios acta as to what .was done between Holt and Ricks away from the presence and hearing of appellant, and such testimony should not be admitted over a proper objection.

The alleged stolen property involved in the instant case was claimed by the state to have been stolen by said Holts from a store in Bastrop. This alleged thief while testifying as a witness was permitted, over objection, to say that he had broken into other stores at Bartlett, Elgin, Granger, and Thorndale. In his qualification to the bill of exceptions taken' by appellant,, the trial court said he admitted said evidence as to other thefts from other stores as showing system on the part of Holt and as evidence of its knowledge on the part of appellant. There appears in the record no contention on the part of appellant that the property was not stolen by Holt, nor that his connection therewith was innocent. There appears no legal reason for showing the commission of the thefts or robberies from! other stores than that in Bastrop from which the alleged stolen property was taken. It was not even attempted to be shown that said other thefts were contemporaneous, and we find nothing in the record to indicate or suggest any knowledge on the part of appellant of said other thefts. The evidence was inadmissible, and the objection should have been sustained.

No error was committed in refusing a peremptory instruction on behalf of appellant. The proof showed that for $11 she bought a now silk dress worth $42.50 which had never been worn or used, and which was brought to her house by the negro Parrish in a hand bag, he having been to her house before with other articles, from all which it would not seem unreasonable that she might have known that his possession of the property was unlawful. When the property was found by the officers in her home, it was taken from an ice chest. Under these facts it was a question for the jury to decide whether or not at the time she bought the property she knew it was acquired by the person from whom she obtained same in such manner- as that its taking was theft.

For the errors above mentioned, the judgment of the trial court will be reversed and the cause remanded.

On Motion for Rehearing.

The state has filed an ingenious motion for rehearing claiming that it is not made clear by the bill of exceptions taken to the action of the trial court in permitting the unpardon-ed convict Holt to-testify, that he gave testimony after such objection was made. The bill of exceptions is not clear on this point. The statement of facts shows beyond dispute that after the objection was made by the appellant, based on. the fact that the witness was an unpardoned convict, and that fact had been disclosed by his testimony, said witness was permitted to testify and state further facts.

Wei are not inclined to believe that our original opinion was erroneous, and the state’s motion for rehearing is overruled. 
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