
    WARD v. STATE.
    (No. 10454.)
    (Court of Criminal Appeals of Texas.
    Dec. 8, 1926.)
    1. Criminal law 1038(1)—Objections to charge, not presented to trial court, cannot be considered on appeal (Vernon’s Ann. Code Cr. Proc. 1925, art. 658).
    Under Yernon’s Ann. Code Cr. Proc. 1925, art. 658, objection to court’s general charge or special charges, not presented to trial court, cannot be considered by appellate court.
    2. Criminal law 1086(14)—Refusal of special charges is not reviewable, unless exception thereto is noted on such charges, or shown by bill of exception.
    Where exception to refusal of court to give special charges is not noted on the same, nor shown by a proper bill of exception, such refusal cannot be reviewed.
    3. Larceny <g=>55—Evidence held to sustain conviction for theft of hogs.
    1Evidence, consisting in part of defendant’s admission that he took hogs in the nighttime and delivered them to his son-in-law, held to sustain conviction for larceny.
    Commissioners’ Decision.
    Appeal from District Court, Medina County; Joseph Jones, Judge.
    
      Prank Ward was convicted of the theft of hogs, and he appeals.
    Affirmed.
    R. J. Noonan, of Hondo, for appellant.
    Sam D. Stinson, State’s Atty., of Austin, and Robt. M. Lyles, Asst. State’s Atty., of Groesbeek,. for the State.
   BAKER, J.

The appellant was convicted in the district court of Medina county for theft of hogs, and his punishment assessed at two years in the penitentiary.

Briefly stated, the record discloses that the appellant and the prosecuting witness, J. W. Meeks, were neighbors, and that the prosecuting witness was the owner of a small bunch of hogs. These hogs went upon the premises of the appellant on about three different occasions and were penned by him. On the first and second occasions the appellant claimed damages to his crop, and he and the prosecuting witness settled the matter by said witness giving to him three of the hogs. Thereafter the prosecuting witness again missed his hogs, and his son tracked them to the premises of the appellant, who .told the prosecuting witness’ son, upon inquiry, that he had seen nothing of them. About a month later the hogs were located quite a distance from the premises of the appellant, with their ears cropped off in a manner which disguised or destroyed the mark of the owner thereon. The appellant testified that he took the hogs in question and delivered them to his stepson-in-law, at night, and suggested to him that he dispose of them if he got a chance to do so, and' suggested that he cut off their ears and tails. The appellant’s stepson-in-law, Burnett, corroborated the testimony of. the appellant, in effect, and admitted that he cut the hogs’ ears off and sold them to the parties in whose possession they were found by the prosecuting witness. The appellant defended upon the ground that the prosecuting witness told him that, if the hogs returned to his premises, he could have them. This testimony was denied by the owner, Meeks.

The appellant complains of the refusal of the court to give to the jury his special charges 1 and 2, to the effect, that, if they believed the appellant took the hogs in good faith, believing that Meeks told him to keep them in the event they again depredated upon his land, to return a verdict of not guilty, and that, unless the jury believed that the statement made by the appellant, as testified to by the witness Burnett, to the effect that the hogs were given to him in payment for damages to his crop, had been proved false by the state, to find the appellant not guilty.

Neither the objections to the court’s general charge, nor the said special charges, show that the objections or special charges were présented to the court before the main charge was read to the jury, and, failing in these particulars, we are unauthorized, under article 658, Vernon’s Ann. C. C. P. 1925, and authorities collated thereunder, to consider same. See, also, Castelberry v. State, 88 Tex. Cr. R. 502, 228 S. W. 216.

Also there is no exception to the refusal of the court to give said special charges, noted on same, nor is there any proper bill of exception in the record supplying this deficiency. This court has frequently held that, to consider the refusal of a trial court to give a special charge, the appellant must either have his exception noted on said special charge, or properly preserve a bill of exception to that effect. Martin v. State, 100 Tex. Cr. R. 876, 272 S. W. 791; Thomas v. State, 100 Tex. Cr. R. 288, 273 S. W. 571. It might not be amiss to say, however, that we think the court, in his general charge, fairly submitted the issues, attempted to be raised in appellant’s special charges 1 and 2.

In bill of exception 1 the appellant attempts to collate what he denominates bills of exception 1 to 5, inclusive, complaining of the action of the court in refusing to give said special charges, the closing argument of the district attorney, and embracing all the matters set out in his motion for new trial, among which is the alleged insufficiency of the evidence to sustain the verdict. This bill, as presented, shows no errors. Nugent v. State, 101 Tex. Cr. R. 86, 273 S. W. 598.

We are unable to agree with the appellant’s contention as to the insufficiency of the evidence. The prosecuting witness, Meeks, testified that he gave no one authority to take the hogs in question; that they were duly marked when they left his premises; that when he found them, about a month later, their ears were cropped off, so as to disguise his mark; and denied that he told the appellant that he could have the hogs for the damage he had sustained, if they returned again to his premises. The appellant admitted that he carried the hogs off, delivered them at night to his stepson-in-lav?-, and suggested that he cut their ears and tails off. The jury, after having had the controverted issues of fact'submitted to them, decided against the appellant, and we think the evidence was sufficient to warrant their verdict.

After a careful examination of the entire record, we are of the opinion that the judgment of the trial court should be affirmed; and it is accordingly so ordered.

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. 
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