
    PHILLIPS v. STATE.
    (No. 4878.)
    (Court of Criminal Appeals of Texas.
    Feb. 6, 1918.)
    1. Larceny &wkey;>40(9) — Name of Owner — Variance.
    That the name of the owner of a stolon calf was J. L. P. and not J. R. P., as alleged, was not a material variance.
    2. Criminal Law <S&wkey;938(2) — New Trial— Newly Discovered Evidence.
    Matters coming out on a trial of defendant in another county prior to the trial in question cannot be newly discovered evidence.
    3. Criminal Law <&wkey;564(2, 3)—Evidence-Venue.
    Evidence with regard to venue of a crime is not required to exclude reasonable doubt, and the evidence may be circumstantial.
    4. Criminal Law &wkey;>112(7) — Venue — Larceny of Cattle.
    Where a calf was stolen in one county and taken into another, the latter county may be given as the venue of the theft.
    5. Criminal Law <&wkey;1090(3)—Review—Ven-ue—Bills of Exception.
    Although under Vernon’s Ann. Code Or. Proc. 1916, art. 938, the question of venue of a crime shall not be considered unless it became a question on the trial, and is brought up by bill of exceptions, where venue was one of the contested issues and remained a part and parcel of the main trial, it is not necessary to reserve a bill of exceptions.
    6. Criminal Law <&wkey;855(4) — Misconduct 03? Jury.
    That father of complaining witness talked with officer in charge of jury while the jury was in the room is not alone sufficient to warrant a reversal.
    Appeal from District Court, Archer County; Wm. N. Bonner, Judge.
    Jodie Phillips was convicted of theft of a calf, and he appeals.
    Affirmed.
    E. B. Hendricks, Asst. Atty. Gen., for the State.
   DAVIDSON, P. J.

Appellant was convicted of the theft of a calf alleged to 'belong to J. R. Prideaux. It is claimed there is a variance between the allegation and the evidence upon this name. The alleged owner testified his name was J. L. and not J. R. Prideaux. Under the authorities this variance is not considered material. The authorities will be found collated in Mr. Branch’s Ann. P. C. § 463. They lay down what seems to be the conceded and unbroken rule in this state with reference to the question.

The motion for new trial also alleges newly discovered evidence. This is met by appellant’s statements in the motion for new trial. It seems appellant had been tried in Young county for the theft of an animal belonging to Prideaux. That trial occurred prior to that in which this conviction occurred. The matters he alleges to be newly discovered all came out in the trial in Young county, and at the time he was tried in this case he was fully aware.of the fact, and was aware of it before he announced ready. This could not be newly discovered.

While the evidence is circumstantial, yet under the authorities we are of opinion the venue was sufficiently proved, and that the jury was justified in so finding. Evidence with regard to venue is not required to exclude reasonable doubt of the fact that the offense was committed in the particular county. If the property was taken in Young county and brought into Archer county, this would be sufficient. Again, our statute requires that the question of venue shall not be considered unless it became a question on the trial, and this matter must be brought up by bill of exceptions. There is an exception to this rule, however, to wit, where that was one of the contested issues on the trial and remained a part and parcel of the main trial, then it would not be necessary to reserve a bill of exceptions. The statement of facts would sufficiently show this matter without referring it to a bill of exceptions. We are of opinion, however, that the circumstances are sufficient to warrant the conclusion that the animal was either taken in Archer county, or brought into it after it had been taken, provided it was taken in Young county.

The father of the alleged owner, it is stated in the motion for new trial, came into the courtroom where the jury was and sat down to warm while the jury was in the room, and talked with the officer in charge of the jury. It is not claimed he talked to any of the jurors, or talked about the case. Unless there is something more shown than this, we would not be justified in reversing the judgment.

The judgment is affirmed. 
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