
    CARPENTER v. STATE.
    (No. 10953.)
    Court of Criminal Appeals of Texas.
    Oct. 5, 1927.
    Rehearing Denied Nov. 2,1927.
    1. Criminal law <&wkey;76l(l8) — Charge held not to assume accomplice’s testimony made chse against defendant.
    In prosecution for theft of property valued at more than $50, charge that jury could not convict on testimony of accomplice unless they first believed testimony true and that it connected defendant with offense! and unless they believed beyond reasonable doubt there was other testimony corroborative of accomplice connecting defendant with crime, held not to assume that testimony of accomplice made case against defendant
    2. Criminal law <§=>780(3), — Charge on accomplice’s testimony held not error as failing to embody instruction that jury must believe accomplice’s testimony showed defendant’s guilt.
    In prosecution for theft of property over value of $50, where accomplice testified to facts which connected defendant with offense charged, charge that jury could not convict on accomplice’s testimony unless they first believed it was true and connected defendant with offense charged, and unless they believed from evidence that other testimony corroborated it and connected defendant with charge, and that they could not convict unless from the evidence they believed beyond reasonable doubt that defendant was guilty, held not error as failing to embody instruction that jury must believe accomplice’s testimony showed defendant’s guilt.
    3. Larceny <§=>72 — Charge held not to require jury to believe defendant guilty of theft of property worth more than $50, regardless of value of property taken.
    In prosecution for theft of property over value of $50, charge that if defendant fraudulently took property of another without his consent, and that if property so taken was of value of $50 or more then to convict of theft of property over $50, held not error as leading jury to believe defendant was guilty of theft of property of value of $50, regardless of value of property taken.
    4. Larceny <&wkey;>79 — Where there is doubt whether property taken constituted felony, defendant should have benefit of doubt and charge of misdemeanor theft should be submitted.
    Where there is doubt from evidence whether sufficient property was taken at one time to constitute felony, doubt should be resolved in favor of accused and law of misdemeanor theft submitted.
    5. Criminal law <§=>534(2) — Defendant’s declarations made to city marshal while under arrest held admissible, where property was recovered by reason thereof.
    In-prosecution for theft of property of value of $50, admitting testimony of city marshal as to oral declarations made to him by defendant while under arrest held proper, where stolen property was recovered by city marshal in pursuance of declarations made to him by defendant.
    6. Criminal law <&wkey;f038(1) — Court of Criminal Appeals cannot consider alleged error in charge, where no objection was made.
    Court of Criminal Appeals cannot consider alleged error in court’s failure to instruct on law of accomplice’s testimony as applied to witness, where bill of exceptions as qualified showed no objection was made to charge for failure so to instruct.
    On Motion for Rehearing.
    7. Criminal law <&wkey;814(20) — Failure to Instruct on law of misdemeanor theft held not error, where evidence showed sufficient property taken to constitute felony.
    Where evidence showed sufficient amount of property taken by defendant to constitute theft of property over value of $50, failure of court to instruct on law of misdemeanor theft was not error.
    8. Criminal law <®=>8I4(3) — Charge not supported by testimony is not called for.
    A charge which is not supported by any testimony is not called for.
    Commissioners’ Decision.
    Appeal from District Court, McLennan County; Richard I. Munroe, Judge.
    Clark Carpenter was convicted of theft of property over the value of $50, and he appeals.
    Affirmed.
    McNamara, Scott & Jaworski, of Waco, for appellant.
    
      Sam D. Stinson, State’s Atty., and' Robt. M. Lyles, Asst. State’s Atty., both of Austin, for the State.
   CHRISTIAN, J.

The offense is theft of property over the value of $50; the punishment, confinement in the penitentiary for 2 years.

The first bill of exception complains of the charge on accomplice testimony, it being asserted by appellant that the court assumed in his charge that the testimony of the accomplice made out a case against him, and, further, that the court instructed the jury that they must believe that the testimony of the accomplice connected the defendant with the offense charged, when he should have embodied in his charge an instruction that the jury must believe that the testimony of the accomplice showed that the defendant was guilty as charged. Under the facts of the case, the charge is in accord with the decisions of this court. The charge complained of is as follows:

“Now, if you are satisfied from the evidence that the witness Douglas Johnson was an accomplice or you have a reasonable doubt as to whether he was or not, as that term is defined in the foregoing instructions, then you are instructed that you cannot convict the defendant upon his testimony, unless you first believe that the testimony of said Douglas Johnson is true, and that it connects the defendant with the offense charged in the indictment, and unless you further believe from the evidence beyond a reasonable doubt that there is other testimony in the case corroborative of the testimony of said Douglas Johnson tending to connect the defendant with the commission of the offense charged. And before you can convict him at all, you must believe from all the evidence in this ease, beyond-a reasonable doubt, that the defendant is guilty of the offense charged in the indictment; otherwise, you will acquit him.”

The witness Douglas Johnson did not testify to facts showing a complete offense, but did testify to facts which connected appellant with the offense charged in the indictment. In substance, the witness testified that appellant and one Murphy brought some automobile casings and inner tubes to the witness’ home about 3 o’clock in the morning and requested the witness to keep them. The witness demurred, hut finally agreed to keep the casings and tubes, and did keep them until they were recovered by an officer. Other witnesses, testifying for the state, showed that the filling station of B. M. Hays had been burglarized, and that the property found in the possession of the witness Johnson had been taken from said filling station. After his arrest by an officer, appellant told the officer where the stolen property was concealed and went with the officer to the home of the witness Johnson, where seven casings and fifteen or sixteen inner tubes were removed from under a bed by Johnson and delivered to the officer. In connection with the statement .to the officer, which led to the recovery of the stolen property, appellant told the officer that he and one Murphy drove to the filling station, and that he (appellant) sat in the car while Murphy went to the back of the filling station, broke into the place, and placed the casings and tubes ,in the car.

The charge in the instant case substantially conforms to the charge approved by this court in the case of Oates v. State, 67 Tex. Cr. R. 488, 149 S. W. 1194, except that the objectionable word “alone,” condemned by this court in Abbott v. State, 94 Tex. Cr. R. 31, 250 S. W. 188, has been omitted from the present charge. In the Oates Case, as in the instant case, the accomplice testified to facts which connected Oates with the offense, but did not testify to facts which constituted a complete offense. As in the present case, the jury were instructed in the Oates Case, in the concluding words of the charge on accomplice testimony, in substance, that they must believe from all the evidence, beyond a reasonable doubt, that the defendant was guilty as charged before they could convict him. See Henderson v. State, 97 Tex. Cr. R. 247, 260 S. W. 868. The charge in the instant case conforms to the suggestions made in the case of Standfield v. State, 84 Tex. Cr. R. 437, 208 S. W. 532, and under the facts clearly presents the law of accomplice testimony.

By bill of exception No. 2 complaint is made that the court’s charge, in effect, instructed the jury that any portion of the property alleged to have been stolen was of the value of $50, and that by such instruction the jury was led to believe that the defendant was guilty of the theft of property of the value of $50, regardless of the value of the property taken. The charge complained of is not subject to this criticism. The court charged the jury as follows:

“Now, if you believe from the evidence beyond a reasonable doubt that the defendant, Clark Carpenter, either alone or in connection with another, in the county of McLennan and state of Texas, on or about the 18th day of October, 1926, as alleged, fraudulently took from the possession of B. M. Hays the property or any part thereof described in the indictment, and that the said property was the property of the said B. M. Hays, without the consent of the said B. M. Hays, with the intent to deprive the owner of the value of the same and to appropriate it to the use and benefit of him, the said defendant, and the said property so taken, if any, was of the value of $50 or more, then you will find the defendant guilty of theft of property over the value of $50 as charged in the indictment.”

By bill of exception No. 3, appellant asserts that the court erred in failing to instruct the jury on the law of misdemeanor theft. In excepting to the court’s charge in this respect, appellant asserts that there was no evidence in the record that any property of the value of $50 was taken at one time. Where there is a doubt from the evidence whether or not a sufficient amount of the property was taken at one time to constitute a felony, the doubt should be resolved by the court in favor of the accused and the law of misdemeanor theft should be submitted to the jury. Garrett v. State, 87 Tex. Cr. R. 12, 218 S. W. 1064. As we understand appellant’s bill, as qualified by the court, there is no doubt from the evidence that a sufficient amount of the property was taken at one time to constitute a felony. It is shown by the bill of exception that the witness B. M. Hays testified, in substance, that he did not know whether the tires were taken from the filling station one at a time or all together; that they could not very well have been taken except two or three at a time; and that the highest priced tire taken had a wholesale value of $35. The witness further testified that the tubes had a value of $4 or $5 each. The court’s qualification of the bill shows that the indictment charged appellant with the theft of seven automobile casings and sixteen automobile tubes of the value of $200, and that the stolen property, which was recovered and identified by the witness B. M. Hays, had a value of over $200. It is further shown by the bill, as qualified, that the property was stolen between 1:30 and 6:30 o’clock on the morning of October 19, 1926, and that thereafter the city marshal arrested appellant, and that the appellant told him the tubes and casings were at Doug Johnson’s home, about 9 miles from town. Appellant went with the officers to Doug Johnson’s, where the property was recovered.

By bill of exception No. 4 appellant excepts to the action of the trial court’ in admitting the testimony of the city manshal touching alleged oral declarations made to said officer by appellant while under arrest; it being asserted by appellant that the declarations were inadmissible for the reason that he was under arrest at the time they were made, and that the statements had not been reduced to writing as required by law. It is shown by the bill, as qualified by the court, that the stolen property was' recovered by the city marshal in pursuance of the declarations made to him by appellant. This evidence was admissible under the rule that, whether the defendant be in custody or not, his oral or written confession is admissible, if in connection therewith he makes statements of facts or circumstances that are' found to be true, which conduce to establish his guilt, such as the finding of secreted or stolen property or the instrument with which he states the offense is committed. See Branch’s Annotated Penal Code, § 63, page 36.

By bill of exception No. 5 appellant complains of the failure of the court to give an instruction on the law of accomplice testimony as applied to the witness Joe Hill. It is unnecessary to discuss this bill further than to say that the bill shows, as qualified, that no objection was made to the court’s charge for his failure to give an instruction on the law of accomplice testimony with reference to the testimony of the witness Hill. Appellant reserved no exception to the court’s failure to give this instruction.

Einding 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.

BATTIMORE, J.

Appellant moves for a rehearing on two grounds, the first being that the charge on accomplices does not go far enough. If the charge went no further than appears from the bill of exceptions, there might be some ground for the complaint, but an examination of the charge shows that immediately following that part of same quoted and referred to in the bill of exceptions, the court further told the jury that, before they, could convict the defendant at all, they must believe from all the evidence in the case, beyond a reasonable doubt, that he was guilty of the offense charged in the indictment. This being in the charge renders unavailing appellant’s complaint. The cases cited in the motion complain of charges in which the statement referred to is not made.

The other complaint is of the refusal of the court to submit the issue of misdemeanor theft. We have carefully examined the testimony in this case. Same shows that between the closing hours at night and tpe opening next morning of the place of business of one Hays a large number of automobile casings and tubes was taken therefrom. Eight casings and fifteen tubes were recovered and were identified and their value stated to be more than $200. There is not a word of testimony in the record suggesting •that any of this property was taken at a time different from that at which all of same was taken. It was all together when lost and all together when found. Appellant did not deny the taking. He took the officers to the place where that, which was recovered, was found. It is a well-settled rule that a charge which is not supported by any testimony is not called for. Many eases have been decided by us on somewhat similar facts. We do not believe the court erred in declining to submit the law of misdemeanor theft.

The motion for rehearing is overruled. 
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