
    WHITEHURST v. STATE.
    (No. 10103.)
    (Court of Criminal Appeals of Texas.
    May 12, 1926.
    On Motion for Rehearing, June 16, 1926.)
    1. Burglary <&wkey;42(3).
    Evidence held sufficient to support conviction for burglary, where defendant threw stolen bank book in gutter as he was being put in patrol wagon.
    2. Criminal law <®=’730(1) — Bill of exception, showing that defendant objected to argument of attorney and that objection was sustained, held insufficient to show error.
    Bill of exception, showing that defendant objected to argument of attorney that he had not filed application for suspended sentence, as he had right to do, and that such objection was sustained, held insufficient to show error.
    On Motion for Rehearing.
    3. Criminal law <&wkey;>l 171(1) — Remarks of district attorney that defendant had not filed application for suspended sentence held not reversible error, where evidence supported conviction.
    Where evidence was sufficient to support verdict, remarks of- district attorney, to which objection was sustained, that defendant had not filed application for suspended sentence, as he had right to do, held not sufficient ground for reversal of conviction.
    4. Criminal law <&wkey;1039 — Court’s failure to notice that indictment taken with jury in retirement contained indorsement, “Under suspended sentence in California,” held not reversible error, in absence of objection (Vernon’s Ann. Code Cr. Proc. 1916, art. 751).
    Court’s failure to notice that indictment, which he .permitted jury to take with them in retirement, contained indorsement, “Under suspended sentence in California,” held not reversible error, in view of Vernon’s Ann. Code Cr. Proc. 1916,. art. 751, where no objection was made to its delivery to jury, and such indorsement did not appear after, above, or below name of defendant.
    4&wkey;E*or other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes
    Commissioners’ Decision.
    Appeal from Criminal District Court No. 2, Dallas County; C. A. Pippen, Judge.
    Paul Whitehurst was convicted of burglary, and he appeals.
    Affirmed.
    
      Hughes & Monroe, oí Dallas, for appellant.
    Sam D. Stinson, State’s Atty., of Austin, and Robt. M. Lyles, Asst. State’s Atty., of Groesbeek, for the State.
   BERRX, J.

The .offense is burglary, and the punishment is two years in the penitentiary.

The state’s testimony shows that the building in charge of J. H. Cassidy, vice president of a printing company in the city of Dallas, was broken into during the night of July 6th, and that Cassidy’s desk was broken into and the knob was knocked off of the vault door. Cassidy testified that he missed nothing from his office except his personal bank book, furnished by the Republic National Bank of Dallas. A police officer testified that he arrested the appellant about 2 o’clock in the morning of July 7th, and two other witnesses testified that they were trash haulers, and that, while the defendant was being put in the patrol wagon by the officers, they saw him throw a bank book into the gutter, and one of them picked this up and turned it over to the chief of detectives, and. Cassidy testified that this chief of detectives returned this book to him, and he identified it on the trial of the case as the one that was missing from his office. The appellant offered no testimony in the case.

This testimony, we think, was clearly sufficient to support the verdict. The possession of the stolen check book was personal, recent, unexplained, and appellant’s effort to hide or destroy it 'is sufficient to show a conscious and distinct possession of the property by the appellant. Casas v. State, 12 Tex. App. 59; Lehman v. State, 18 Tex. App. 174, 51 Am. Rep. 298; Stewart v. State (Tex. Cr. App.) 77 S. W. 791.

There are but two bills of exceptions in the record.' The first was prepared by the court, and'shows that appellant objected to the following argument of the attorney appearing for the state:

“The law permits a defendant to file a suspended sentence one tim^. - The defendant has not filed an application for a suspended sentence in this case.”

The bill further shows that the defendant objected to this argument and his objections were sustained. This bill is insufficient to show any error.

The other bill of exceptions complains be; cause the court permitted the jury to take with them in their retirement his main charge, the special charges, and a copy of the indictment, and that on the hack of the indictment, where the witnesses’ names were listed, appears this notation: “Suspended sentence in California.” The bill shows that the defendant did not notice this notation on the back of the indictment, and the court Qualifies the bill by stating that he did not know that the words in quotations above were on the back of the indictment, and that same was not called to the attention of the court until after the jury had retired with the indictment. The court further certified that the defendant did not except at the time to the indictment being delivered to the jury in the condition it was in. The court further certified that on the back of the indictment the following appeared:

“J. H. Cassidy, 914 Ross, 1213 or 3517 Linde-wood.
.“A. B. Parral, City Hall.
“Under a suspended sentence in California.
“H. J. Johnson, 1721 Baylor.
“O. J. Wood, 3426 Edgewood.
“Ed Murphy, 2814 Taylor.
“Tom Elam, 2211 Second.”

The court further states that from the reading of these names on the back of the indictment.the jury could not have possibly concluded that the words “Under a suspended sentence in California” had any reference to the defendant, because it does not appear after, above, or below the name of the defendant Paul Whitehurst. Appellant contends, however, that the latter part of the explanation is a mere conclusion of the court. Conceding that he is correct in this contention, we nevertheless believe that it is such a conclusion as must indubitably be drawn from the facts. We see nothing in this record that would cause any person to believe, from the notation on the back of the indictment as above set out, that the appellant was the person spoken of as being under a suspended sentence in California. We also advert to the fact that the appellant received the minimum penalty, and we cannot lead ourselves to the conclusion that a proper verdict, other than that of guilty, could have been assessed under the undisputed facts in this case.

Finding no error in the record, the judgment is affirmed.

PER CURIAM.

The foregoing opinion of the Commission of Appeals has been examined by the judges of the Court of Criminal Appeals, and approved by the court.

On Motion for Rehearing.

MORROW, P: J:

The evidence being sufficient to support the verdict, the remarks of the district attorney to which the appellant’s objections were sustained are not deemed sufficient grounds upon which to reverse the judgment.

The law contemplated that the indictment be delivered to the jury. See Vernon’s Tex. Crim. Stat. vol. 2, p. 566, art. 751. No objection was made to its delivery in the present instance.

No reversible error was committed by reason of the failure of the court to notice the indorsements on the indictment which were complained of in the original opinion. See Harvey v. State, 35 Tex. Cr. R. 545, 34 S. W. 623; Lancaster v. State, 36 Tex. Cr. R. 17, 35 S. W. 165; Ross v. State, 100 Tex. Cr. R. 208, 273 S. W. 582.

Tire motion for rehearing is overruled.  