
    HAMILTON v. STATE.
    (No. 4659.)
    (Court of Criminal Appeals of Texas.
    Dec. 12, 1917.
    On Motion for Rehearing, Jan. 23, 1918.)
    1. Larceny &wkey;>55 — Weight and Sueeiciency oe Evidence.
    On a trial for the theft of an automobile, evidence held sufficient to establish defendant’s guilt.
    2. Larceny <&wkey;45 — Evidence—Admissibility —Identity oe Property.
    On a trial for theft of an automobile, testimony as to the number of an automobile bought by the witness the morning following the theft, and which was the number of the stolen machine, was admissible to show the identity of the car.
    3. Criminal Law i&wkey;534(l) — Evidence — Identity oe Property — Corroboration oe Ooneession.
    Testimony of the owner of a stolen car that he had surgical instruments and papers in the car at the time it was stolen, and that he found some of them along the road where the automobile was driven and recovered others from parties who had found them along such road, was admissible as tending to show the identity of the stolen machine, and also to corroborate defendant’s confession, as to the route he and others went in the stolen machine.
    4. Larceny <&wkey;45 — Evidence — Admissibility — Identity oe Property.
    Testimony of another witness that he found some of such papers along such route which were identified, claimed, and delivered to the owner of the car was admissible.
    5. Criminal Law <&wkey;814(19) — Instructions— CONEORMITY TO EVIDENCE — PARTIES TO ÜE-EENSES.
    Defendant’s confession, showing that he and others decided to steal a car in order to sell it, that they went out looking for a caí-, and found one at a certain place, that B. went to the car, cranked it, and drove off, that defendant got in the car in the middle of the block, and the other two parties on the corner, that they drove to another city, and B. went to a garage to see if he could sell the car, the others waiting a few blocks away, that B. came back and said, ho had sold it, and went to the car, took it, and went back to the garage, the other parties going within a short distance of the car and seeing that B. got it all right, and then returning to where they had been- waiting, justified an instruction on the subject of principals, as it showed that some or all of the parties were principals with defendant in the theft of the machine.
    On Motion for Rehearing.
    6. Criminal Law &wkey;>814(ll) — Instructions— Conformity to Evidence — Parties to Oe-EENSES.
    On a trial for theft of an automobile, the testimony of defendant, his wife, and his mother that they were together continuously at his mother’s before, at the time and after the time the automobile was stolen, justified the court in charging on alibi.
    7. Criminal Law &wkey;1043(3), 1090(14) — Appeal — Objections—Bill oe Exceptions.
    Under Yernon’s Ann. Code Cr. Proc. 1916, art. 743, providing that all objections to the charge and on account of the refusal or modification of special charges shall be made at the time of the trial, an objection that an instruction on the law of principals was in conflict with a charge on alibi was not available on appeal, where the only objection made to the charge was that no charge at all on principals should be given, because there was no testimony that defendant was acting together with certain other persons or any one else, and no bill of exceptions was taken to the court’s failure to comply with the objection; such conflict not being fundamental error.
    Appeal from District Court, Tarrant County; R. E. L. Roy, Judge.
    C. E. Hamilton was convicted of tbeft, and be appeals.
    Affirmed.
    Simpson & Estes, of Et. Worth, for appellant. E. B. Hendricks, Asst. Atty. Gen., for the State.
   PRENDERGAST, J.

Appellant was convicted of theft of an automobile of more than the value of $50, and his punishment assessed at three years in the penitentiary.

The uncontradicted testimony shows that in the early part of the night of February 5, 1917, Dr. Cloud’s automobile was stolen from in front of his residence at a certain locality in Ft. Worth, and at the time it was stolen that he had therein certain instruments which he used as a veterinary surgeon and also certain papers; that his said automobile was that night driven to Dallas, and very early the next morning was sold to a certain garage company in Dallas. The automobile was traced down and later recovered. A few days after the theft appellant and others were arrested accused of the theft of it. Soon after his arrest appellant, strictly in conformity with the statute regulating confessions, made and signed a written confession in which he stated where he lived in Et. Worth; that he knew Gordon Brock, Joe Cox, and Otis Runyon; that on Friday evening about 6 o’clock he and Cox went to the home of Brock; they talked a while and then went uptown to a certain pool hall and played pool a while therein, when Runyon came in. The confession proceeds as follows:

“Brock told us. that he knew where he could sell a car. We decided to go out and steal one. We went out on the South Side, but did not get a chance to get one. We came back to town on a Summit avenue car. AYe got oft of this car at about the 1,100 block on West Seventh street. We walked over to West Fifth street and across several other streets looking for a car, but didn’t find one. When we got to Lamar street, we came south. We found a Ford five-passenger car on Lamar between Seventh and Tenth. Gordon Brock went to this car and cranked it and got in it and drove it off. I got in it in the middle of the block. The other two boys, Runyon and Oox, got in the car on the cornel. We drove the car to North Ft. Worth. We had a blow-out and fixed it and drove out the Keller road to where a road turns off to Birdville. We drove to Birdville, and then to Grapevine, and from Grapevine to Dallas. About 8 o’clock the next morning we started out to sell the car. Brock went to a garage to see if he could sell the car. I waited about six blocks up the street. Runyon and Gox waited about three blocks from the garage. Brock came back and said that he had the car sold. He then went to where we had left the ear, which was several blocks away from us. We walked to within about one block, and saw that Brock got’the car all right, and when he came on back toward the garage we came back to where we had been waiting. Brock went to the garage. I have not seen him any more since that time until this morning. When Brock did not come back I walked by the garage, but did not see him or the other boys, so I thought that I had been beat out of my part of the proceeds of the sale. I then came back 'and caught an interurban car and came back to Ft. Worth. I did not know that they had been arrested. I did not know who owned this car.”

The state also proved that on said' road on the route appellant stated in his confession he and the others took said car from Ft. Worth to Dallas some of the surgical instruments and papers of Dr. Cloud were found and fully identified by Dr. Cloud as those that were in the automobile at the time it was stolen. The evidence was ample and clearly sufficient to establish appellant’s guilt.

Appellant has a very meager bill of exceptions objecting to the testimony of Mr. Morelock wherein he stated the number of said automobile which he had bought in Dallas on the morning of February 6th. This was the number of Dr. Cloud’s machine. This testimony was admissible as tending to show the identity of the ear.

He has another like meager bill objecting to the testimony of Dr. Cloud to the effect that at the time his car was stolen he had said surgical instruments and papers therein which he in a day or two afterward recovered, some of them from parties who had found them along the road where said automobile had been driven from Ft. Worth to Dallas, and himself found some of them along the same road. This testimony was clearly admissible as tending to show the identity of the stolen machine, and also to corroborate the appellant in his written confession of the route he and the others went in said machine from Ft. Worth to Dallas.

Testimony of Mr. Bewley that he found some of those papers along said route which were identified, claimed, and delivered to Dr. Cloud was admissible.

The confession of appellant which was introduced by the state showing that some or all of said persons who appellant confessed were with him at the time said automobile was stolen, and also with him in Dallas when the machine was sold early the next morning, was clearly sufficient, together with the other circumstances, to show that some or all of them were principals with him in the theft of said machine. The court therefore did not err in telling the jury who were principals, as defined by the statute, and submitting that issue. So that appellant’s objection to the court submitting any charge at all on the subject of principals is without any merit. He claimed that the evidence did not raise any such issue. As stated, the evidence did raise such an issue so as to make it proper for the court to submit it to the jury.

Appellant claimed that he did not make said confession voluntarily and willingly, but in substance that he was forced to do so, and that he did so because the assistant county attorney and other officers promised him immunity if he would make the confession. The great preponderance of the testimony by several witnesses on this issue was clearly against him. The court, however, told the jury that, if said confession was not voluntarily and willingly made, to wholly disregard it, and not consider it for any purpose.

Appellant and his wife and mother testified to" what would have been sufficient to have established an alibi for him if believed by the jury. The court properly submitted that issue to the jury, and the jury found against him on ample evidence to sustain the conviction.

The record herein is clearly without any reversible error.

The judgment is affirmed.

On Motion for Rehearing.

Appellant’s sole ground for rehearing is that there was a direct conflict between the charge of the court on the subject of principals and that of alibi.

In the original opinion we gave the .testimony which clearly showed that appellant, with three or four other persons, entered into an agreement to steal an automobile and sell it and divide the proceeds; that they went on a hunt for one on the streets of Ft. Worth under that agreement, and found the automobile of Dr. Cloud and stole it; took it to Dallas and sold it, to divide the proceeds. By his confession, copied in the original opinion, appellant showed that, when the four persons who had entered into the agreement stole the car from in front of Dr. Cloud’s, two of them stopped on a corner of the block, he himself went down about the center of the block, and another went to the car, cranked it, and drove it along where he was and he got in it, and continued to where the other two were, and they got in it, and then they took it to Dallas. As a matter of fact, all of them, or at least appellant, was in such proximity to the one who actually cranked the car and started it along so as to be actually present at, and participating in, tbe taking.

Tiie court’s charge on principals was as follows:

•‘(2) All persons are principals who are guilty of acting together in the commission of an offense. When an offense has been actually committed by one or more persons, the true, criterion for determining who are principals is: Did the parties act together in the commission of the offense? Was the act done in pursuance of a common intent and in pursuance of a previously formed design in which the minds of all united and concurred? If so, then the law is that all are alike guilty, provided the offense was actually committed during the existence and in the execution of a common design and intent of all, whether in point of fact all were actually bodily present upon the ground when the offense was actually committed or not.”

It is seen this is a mere general definition of who is a principal. In submitting the case to the jury for a finding the court told the jury in the third division that, if they believed beyond a reasonable doubt that appellant, acting by himself or together with the other three parties or either of them on or about the date alleged, unlawfully and fraudulently took from the possession of the said Cloud the automobile, etc., to find him guilty.

Then in another paragraph he correctly told the jury what was an alibi, and instructed them that, if the evidence raised a reasonable doubt in their minds as to the presence of appellant at the time and place of the commission of the offense, to acquit him. The evidence raising the issue of alibi, as stated in the original opinion, was the testimony of himself, his wife and mother, wherein they testified they were together continuously at his mother’s before, at the time and after the- time said automobile was stolen. It was proper, therefore, for the court to charge on both the subjects, that is, on principals and on alibi. It might be contended under these issues so raised that that part of the charge on principals stating “whether in point of fact all were actually bodily present upon the ground when the offense was actually committed or not” was harmless, and not in conflict with the alibi charge, but, if so, the jury were not misled by any such conflict. But whether that is true or not it is unnecessary to decide, because appellant did not at the time make any such objection to the charge of the court, and did not in the objections he did make call the court’s attention to this matter or this claimed conflict as the statute expressly requires shall be done.

The record shows that the court prepared and gave to appellant’s attorneys in ample time his charge, so that, if there were any mistakes in it, they could point them out to the court by proper exceptions. The only objection they made to the charge was that no charge at all on principals should be given, claiming that the court should not have submitted the issue as he did in the third division of it, because he claimed there was no testimony “showing that the defendant was acting together with Joe Oox, Arthur Brown, Brock, or any one else.” It will thus be seen that what appellant objected to was not to any supposed conflict between the definition of who were principals and the charge on alibi, but what he was objecting to was that there was no testimony at all that authorized a charge on the subject of principals.

Besides this, appellant took no bill whatever to, the court’s not complying, if he did not, with his objection. This was necessary. All he did was to merely make this objection. It is not shown what changes, if any, the court made in its charge, hut apparently by not taking a bill appellant acquiesced in the court’s charge.

Before the amendment of article 743 (old 723) C. C. P., by the act of April 5, 1913 (Acts 33d Leg. c. 138), it required an accused to either make an objection to the court’s charge when erroneous by a proper bill of exception or in motion for new trial. Under that article before it was amended this court had uniformly held, and in a great many cases, that unless a bill of exception was taken to the court’s charge during the trial or by motion for new trial, however erroneous the charge might be, this court could not consider it. In Johnson v. State, 42 Tex. Or. S. 88, 58 S. W. 60, 51 L. R. A. 272, this court, in discussing the said article, held:

“However erroneous the charge of the court may be, appellant having reserved no exception in the court below, either by bill or motion for new trial, they are without remedy at law.”

And again:

“Appellant by neither bill of exceptions nor motion for new trial having complained of the court’s charge, we cannot review any supposed error in the charge, however erroneous it may be; that article 743 (723), Code of Criminal Procedure, gives appellant a perfect, complete, and adequate remedy for the assertion of his rights; and if, through ignorance, neglect, or any other cause, he fails to avail himself of this remedy, we cannot review the matter, and appellant is without remedy.”

This has been held by this court continuously and in a great many decisions since the Johnson Case. See note 23, p. 510, 2 Vernon’s Crim. Stats., where a large number of these cases are collated.

The only difference between the said old article 723 and the amendment of it in 1913 is that the amendment requires an accused to make these exceptions and preserve them by a bill before the charge is read to the jury, and, unless this is done, this court has uniformly held that it cannot consider any objection to the charge made after the trial. Some of these cases so holding are collated in note 64, p. 526, 2 Vernon’s Crim. Stats. This is the holding of this court down to now. Holder v. State, 194 S. W. 165; Grider v. State, 198 S. W. 579. So that, as appellant did not point out to the court below his specific objection and call the court’s attention thereto, which he now makes as to the claimed conflict between said charges, he cannot avail himself now of any such objection. He waived it. Such conflict is not fundamental error.

The motion is overruled. 
      ©rsoFor.other oases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes
     