
    VINEYARD v. STATE.
    No. 18707.
    Court of Criminal Appeals of Texas.
    Jan. 6, 1937.
    Reynolds & Heare and D. G. Reynolds, all of Shamrock, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the -State.
   CHRISTIAN, Judge.

The offense is theft; the punishment, confinement in the penitentiary for two years.

The proof on the part of the State was to the effect that appellant and Alvin Per-rin stole some automobile wheels and tires from J. A. Miller. Recently after the theft officers found said property in the possession of appellant. Perrin testified to the effect that he and appellant stole said property. Appellant did not testify.

It is shown in bill .of exception No. 1 that in argument to the jury the district attorney used language as follows: “The recent possession, unexplained, of stolen property is sufficient to warrant a conviction and sustain Same.” Appellant objected to said remarks on the ground that they constituted a reference to his failure to testify. It is unnecessary to determine whether the objection was well taken. See Berry v. State, 87 Tex.Cr.R. 559, 223 S.W. 212. The bill of exception is deficient in failing to show that only appellant was in a position to explain his possession of the stolen property.

The judgment is affirmed.

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.

MORROW, P. J., absent.  