
    PRESTON v. STATE.
    (No. 7423.)
    (Court of Criminal Appeals of Texas.
    May 30, 1923.
    Rehearing Denied June 20, 1923.)
    1. Larceny <&wkey;40( 10) — Allegation of individual ownership and proof of joint ownership not a variance.
    In a prosecution for theft of money, in which an individual was named as the, owner, whereas the money was stolen from the mercantile establishment owned by him and another, there was no variance under Code Cr. Proc. 1911, art. 457, providing that, where property is owned in common or jointly by two or more persons, the ownership may be alleged to be in all or either of them.
    2. Criminal law <&wkey;l090(l4), 11221(6) — Refusal of requested charges not considered where record does not show that they were presented in time, and there are no bills of exception.
    The refusal of special charges cannot be considered where the record is without bills of exception, and it does not appear that they were presented to the trial judge in the time required by statute.
    Appeal from Criminal District Court, Tar-rant County; Geo. E. Hosey, Judge.
    Jack Preston was convicted of theft, and he appeals.
    Affirmed.
    Estes, Payne, Morris & Pressly and H. D. Payne, all of Fort Worth, for appellant.
    R. G. Storey, Asst. Atty. Gen., for the State.
   MORROW, P. J.

The offense is theft; punishment fixed at confinement in the penitentiary for a period of two years.

The property stolen was $81 in money. Tom Bunch was named as the owner. Bunch and Swearengen- were partners in a mercantile establishment. In their place of business was a safe from ’which the appellant took the money. He was caught in the act by Bunch, who was alone in the store., Swearengen was in the city, but not in the store. At the time of the theft the store and the property therein was under the care, control; and management of Bunch. Such was his testimony.

In the statute it is said:

“Where property is owned in common, or jointly,'by two or more persons, the ownership may be alleged to be in all or either of them.” Code Cr. Proc. art. 457.

Upon these facts there 'was no variance growing out of the joint ownership. Lockett v. State, 59 Tex. Cr. R.. 531, 129 S. W. 627; Branch’s Ann. Tex. P. C. § 2434, and cases listed. Also Palmer v. State, 92 Tex. Cr. R. 640, 245 S. W. 239.

The record is without bills of exception. Some special charges were refused, but it does not appear that they were presented to the trial judge in the time required by statute, nor that exception was taken to their refusal. Therefore they cannot be considered. Barrios v. State, 83 Tex. Cr. R. 548, 204 S. W. 326; Nichols v. State, 91 Tex. Cr. R. 277, 238 S. W. 232; Eliphas Linder v. State (No. 6558) 250 S. W. 703, recently decided.

Finding no error, the judgment is affirmed.  