
    FORWARD v. STATE.
    (No. 3108.)
    (Court of Criminal Appeals of Texas.
    April 29, 1914.)
    1. Criminal Law (§ 511) — Evidence—'Witnesses — Accomplices—Corroboration.
    Where 'the prosecuting witness testified that his watch was stolen while he was in a saloon, that accused was the only person close enough to him to have taken it, and that accused’s accomplice to whom the watch was delivered, and who pawned it, remained seated in a chair some distance away during the entire time he was in the saloon, there is sufficient corroboration to support a conviction on the accomplice’s testimony that accused took the watch and delivered it to him to/' pawn.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 1128-1137; Dec. Dig. § 511.]
    2. Criminal Law (§ 826) — Trial—Instructions — Objections—Time for Requests.
    Under Act April 5, 1913 (Acts 33d Leg. c. 138), amending Code Or. Rroe. 1911, art. 743, where no objection was made when the charge was submitted to accused’s counsel before argument, a request to charge on circumstantial evidence, made during the closing argument for the state, comes too late.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §< 2008; Dec. Dig. § 826.]
    3. Criminal Law (§ 784) — Trial—Instructions — Charge on Circumstantial Evidence.
    In a prosecution for theft from the person, where the prosecuting witness testified that accused was the only person who had an opportunity to steal his watch, and accused’s accomplice testified that accused delivered it to him to pawn, the facts are in such close juxtaposition as to be equivalent to positive testimony, and a charge on circumstantial evidence is unnecessary.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 1883-1888, 1922, 1960; Dec. Dig. § 784.]
    4. Criminal Law (§ 1171) — Trial—Appeal —Harmless Error.
    Where the jury were charged to disregard it, a reference by the district attorney in argument to marks of guilt on accused’s face is harmless.
    [Ed. Note.- — For other cases, see Criminal Law, Cent. Dig. §§ 3126, 3127; Dec. Dig. § 1171.]
    Appeal from District Court, Robertson County; J. C. Scott, Judge.
    Amos Forward was convicted of larceny from the person, and he appeals.
    Affirmed.
    Y. B. Hudson, of Bryan, for appellant. C. E. Lane, Asst Atty. Gen., for the State.
    
      
      For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep’r Indexes
    
   PRENDERGAST, P. J.

Appellant was convicted for stealing a watch from the person of Hezekiah Dobbins, and his punishment assessed at the lowest prescribed by law.

Appellant contends that the evidence is insufficient to sustain the verdict, and • within and as a part of that, that the testimony of Chris Tatum; who was an accomplice, was not sufficiently corroborated.

The evidence by Dobbins is to the effect: That on the morning of about May 21, 1913, he went in a saloon, in Hearne to get a drink of beer, and as he walked in he pulled out and looked at his watch and then replaced it in his pocket. The watch was in his side pants watch pocket, and to it was attached a fob. That appellant was standing up at the bar when he walked up and called for beer. Appellant at the time asked him to get him (appellant) also a glass of beer, which he refused to do. That appellant, while he (Dobbins) was at the bar, walked right up by his side, and they stood there about 5 or 10 minutes. That appellant then called him off in the back just out of the saloon, exhibited to him his (appellant’s) little old silver watch, and tried to get him to give him $3 on it. He refused that. That Dobbins then started out of the saloon door, felt for his watch, and missed it, and at once accused appellant of getting it, which appellant vigorously denied. Dobbins swore: “While I was in that saloon, there was no one close enough to me to get my watch, but the defendant, Amos Forward, no one else at all.” Dobbins at once went and complained to the officer. that his watch had been stolen from him. The officer searched appellant, but did not then find the watch on him. That Chris Tatum, when he (Dobbins) went in the saloon, was sitting in a chair over by the .heater and never got up out of the chair while he was in the saloon.

The evidence in no way puts either the saloon keeper or his porter in such position or proximity to Dobbins, while he was in the saloon, as for any suspicion even to attach to them that either got the watch. The. accomplice, Tatum, testified substantially as did Dobbins: That he was sitting back of the heater the whole time Dobbins was in the saloon and never got near him, but that appellant and Dobbins were standing close together right in front of the bar, and that appellant called Dobbins back in the rear of the saloon, and that he never got up out of the chair the whole time Dobbins was in the saloon. That, after remaining in the saloon some little time after Dobbins accused appellant of stealing his watch and appellant denied it, he (Tatum) went out of the saloon and to a Mexican chile joint. That appellant then came in the chile joint, called him out, told him to take the watch over to a pawnbroker’s, pawn it, and get money on it, and he would divide with him the money. That appellant then .delivered to him Dobbins’ watch, and he pawned it with the pawnbroker, got a dollar on it, took the dollar back and delivered it to appellant, and appellant gave him half of it. That he saw Dobbins and told Dobbins if he would give him $2.50, he would go and get his watch. Dobbins, under the direction of the officer, gave him $2.50, and before he got back to Dobbins with the watch he was arrested. He denied that he had it, and the officers searched him and could not find it and then put him in jail. The officer then went to the pawnbroker and found out that Tatum had pawned the watch, a short time afterwards came and redeemed it, and then the officer went to the calaboose where Tatum was confined, and, after talking with him, Tatum got the watch out of the calaboose where he had hid it and delivered it to the officer. The watch was thoroughly identified by all the witnesses as the watch Dobbins stated was stolen from him in the saloon by appellant. This accomplice, Tatum, had been himself convicted for stealing this watch at the previous term of court, but the court granted him a new trial, and the case was still pending against him at the time he testified in this case.

It has been long settled by the many decisions of this court what is essential to the corroboration of the testimony of an accomplice. We think unquestionably, under the law and decisions, the testimony of the accomplice, Tatum, was amply and fully corroborated. Nourse v. State, 2 Tex. App. 316; Jones v. State, 4 Tex. App. 531; Tooney v. State, 5 Tex. App. 193; Simms v. State, 8 Tex. App. 243; Clanton v. State, 13 Tex. App. 157; Moore v. State, 47 Tex. Cr. R. 415, 83 S. W. 1117; Nash v. State, 61 Tex. Cr. R. 264, 134 S. W. 709; Warren v. State, 149 S. W. 135; and many other cases unnecessary to cite. The testimony in this case is clearly sufficient to sustain the verdict.

This case was tried February 6, 1914, long after the Act of April 5, 1913 (Acts 33d Leg. c. 138, had been in effect, amending article 743 and previous articles as to the charge of the court. Before the argument began, the court submitted his charge to appellant’s attorney. At the time he made no objection thereto that the court had failed to charge on circumstantial evidence, nor did he at that time requeát any charge on circumstantial evidence. During the closing argument of the district attorney, he, for the first time, requested the court to submit a charge on circumstantial evidence. The court at that time refused to do so. We cannot review this question even if the court should have given such charge. Besides, under any contingency the facts proven in this case, if they did not show by direct or positive proof appellant stole the watch, they are in such close juxtaposition thereto as to be equivalent to direct testimony, and a charge on circumstantial evidence was not required. Branch’s Criminal Law, § 203, first subdivision and the next to the last subdivision under this section on page 107, where some of the oases are coL lated; Baldwin v. State, 31 Tex. Cr. R. 589, 21 S. W. 679; Surrell v. State, 29 Tex. App. 321, 15 S. W. 816; Dobbs v. State, 51 Tex. Cr. R. 629, 103 S. W. 918; Adams v. State, 34 Tex. Cr. R. 470, 31 S. W. 372; Crews v. State, 34 Tex. Cr. R. 533, 31 S. W. 373; Beason v. State, 43 Tex. Cr. R. 442, 67 S. W. 96, 69 L. R. A. 193; Cabrera v. State, 56 Tex. Cr. R. 150, 118 S. W. 1054; Law v. State, 160 S. W. 99; Ballard v. State, 160 S. W. 92.

As one ground of his motion for new trial, appellant complained that the district attorney, in his closing argument, said: “I want you to -look into this defendant’s face and ■ see if you do not see marks of guilt there.” Appellant alone swore to his motion for new trial. The district attorney contested the motion on this ground and attached thereto his, and the affidavits of every one of the jurors wherein he and they swore that he did not use the language attributed to him above, but instead used this language, “Gentlemen of the jury, look into the face of the defendant, and see if there are not marks of intelligence there,” and at the time he made said statements he was discussing the intelligence of prosecuting witnesses and comparing same to that of the defendant. The court heard all this in hearing the motion for new trial and overruled it. However, he approved appellant’s bill of exceptions to the effect that the district attorney did use such language in bis closing argument. We also find that the appellant requested, and the court gave, this special charge to the jury: “You are instructed not to consider that part of the argument or remarks made by the district attorney to this effect, viz., ‘Gentlemen of the jury, look into the face of this defendant, and say if you do not see marks of guilt there.’ You will not consider this part of the argument for any purpose.” Under the circumstances and the authorities, this question does not present reversible error. Pierson v. State, 18 Tex. App. 564; House v. State, 19 Tex. App. 239; Hardy v. State, 31 Tex. Cr. R. 293, 20 S. W. 561; Tweedle v. State, 29 Tex. App. 591, 16 S. W. 544; Bingham v. State, 6 Tex. App. 169; Frizzell v. State, 30 Tex. Cr. App. 56, 16 S. W. 751; Gowans v. State, 64 Tex. Cr. R. 405, 145 S. W. 614.

The judgment is affirmed.  