
    CAMPBELL v. STATE.
    (No. 9765.)
    (Court of Criminal Appeals of Texas.
    Feb. 10, 1926.
    Rehearing Denied March 24, 1926.)
    1. Criminal law <&wkey;>537 — Admission of confession and statements by accused while .under arrest, leading to recovery of property stolen, held not error.
    Admission of confession and statements of one accused of theft, leading to recovery of the property taken, held not error, although made under arrest without due warning, and not reduced to writing.
    2.-Larceny &wkey;>40'(6) — Proof of theft of rings set with diamonds did not vary from charge of “theft of two diamonds.”
    There is no variance between a charge in indictment of “theft of two diamonds” and evidence showing theft of rings set with diamonds.,
    3.Witnesses <&wkey;268(5) — Bill that state on cross-examination asked witness if he was as sure he saw accused as he was of any of his other testimony held to show no error.
    Bill on appeal from conviction of theft, complaining that the state, on cross-examination, was permitted to ask a witness if he was as sure he saw accused in Houston in 1923 as he was of any of his other testimony, held to show no error. _
    Commissioners’ Decision.
    Appeal from Criminal District Court, Dallas County; Felix D. Robertson, Judge.
    Bill Campbell was convicted of theft, and he appeals.
    Affirmed.
    Calloway, Dalton & Calloway, of Dallas, for appellant.
    Shelby Cox, Crim. Dist. Atty., and Wm. McCraw, Asst. Dist. Atty., both of Dallas, and Sam D. Stinson, State’s Atty., of Austin, and Nat Gentry, Jr., Asst. State’s Atty., of Tyler, for the State.
   BAKER, J.

The Appellant was convicted in the district court of Dallas county for the offense of theft of diamonds over the value of $50, and his punishment assessed at 10 years in the penitentiary.

The record discloses that the appellant was charged by indictment with theft of diamonds belonging to one Casler, which the state’s evidence shows to have been taken from the residence of said Casler, and one of which was recovered from appellant while he was attempting to pawn same shortly after said alleged theft, and the others recovered where appellant had thrown same from the street car after being arrested, from information given by appellant to the officers in making a confession thereof. It was the contention of the appellant on the trial that he obtained said rings by advancing a loan to another party.

The appellant has not favored us with a brief in- this ease, but we find in the record three bills of exceptions. Bill of exception No. 1 complains of the action of the court in permitting the state to show and introduce in evidence statements of the appellant while under arrest, relative to his throwing the rings out of the street car while he was being carried from the place of arrest by the officer to the city hall. The appellant contends he was not duly warned; same was not reduced to writing;, and therefore inadmissible. The court refused the bill as presented by the appellant, and prepared one of his own, which shows that from the confession and statements of the appellant the officers recovered two of the rings in question. This bill shows no error in the admission of testimony because the fruits of the crime were discovered from the confession made by the appellant. Hilliard v. State, 222 S. W. 553, 87 Tex. Cr. R. 416; Jones v. State, 96 S. W. 930, 50 Tex. Cr. R. 329.

Bill No. 2 complains oí the action of the court in refusing to submit appellant’s special charge to the jury to the'effect that the indictment charged the “theft of two diamonds,” while the evidence showed theft of certain rings set with diamonds, and, by reason of such variance, to return a verdict of not guilty. ’ There is nothing in this contention, as this court has held against the appellant on this identical question in Mathason v. State, 229 S. W. 548, 89 Tes. Cr. R. 136.

Also see Henderson v. State, 260 S. W. 868, 97 Tex. Cr. R. 247.

Bill No. 3 complains of the action of the court in permitting the state on crossesamination of the witness Hunt to ash him if he was just as sure that he saw the appellant in Houston in 1923, as he was of any of his other testimony. This bill as presented shows no error in the matters complained of.

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

PER CURIAM. The foregoing 'opinion of the Commission of Appeals has Been exam- . ined by the Judges of the Court of Criminal Appeals, and approved by the court.

On Motion for Rehearing.

HAWKINS, J.

We find nothing in appellant’s motion for rehearing leading us to believe our original opinion did not properly dispose of the case.

The motion is therefore overruled. 
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