
    PRITCHARD v. STATE.
    (No. 4737.)
    (Court of Criminal Appeals of Texas.
    Dec. 5, 1917.)
    1. Criminal Law @=31090(14) — Appeal — Statement of Pacts — Necessity.
    A bill of exceptions complaining of the court’s charge presents nothing for review, where there was no statement of facts showing the evidence upon which the charge was' based.
    2. Criminal Law <@=1090(8) — Appeai>-Ex-ceptions, Bill of — Necessity.
    Under Code Or. Proc. 1911, art. 744, declaring that on the trial of any criminal action the defendant by himself or counsel may tender his bill of exceptions to any decision, opinion, order, or charge of the court, the admission of evidence cannot be reviewed where the point is not presented by bill of exceptions.
    3. Ckiminal Law <§=1090(16) — New Trial— Denial — Pbopbiety.
    In the absence of a statement of facts showing the evidence, the denial of a motion for new trial based on the theory that the jury received evidence after its retirement and considered the same held not to show an abuse of discretion.
    4. Larceny <@=351 (1) — Evidence — Admissibility.
    Proof that accused was in possession of property at any time after it was stolen may be considered by the jury on the question of his guilt.
    Appeal from Eastland County Court; Joe Burkett, Judge.
    Lee ¡Pritchard was convicted of misdemeanor theft, and he appeals.
    Affirmed.
    E. B. Hendricks, Asst. Atty. Gen., for the State.
   MORROW, J.

Appellant was convicted of a misdemeanor theft under $50.

We find no statement of facts, and are therefore not apprised of the evidence. The only bill of exceptions found complains of the court’s charge, and, in the absence of knowledge of the facts, we are unable to determine that there was error in submitting the issues. Vernon’s C. C. P. art. 844, p. 812, note 5, and cases cited.

The motion for new trial refers 'to some evidence which it is claimed was inadmissible. In the absence of bill of exceptions, this matter is not before us for review. C. C. P. art. 744; Vernon’s C. C. P. p. 527, notes 1 and 2, and cases cited.

In the motion for new trial is an allegation that the jury in their retirement discussed the fact that appellant was in possession of the alleged stolen property and failed to explain such possession. This is supported by an affidavit of one of the jurors, and there is an allegation in the motion that this discussion was not based upon evidence introduced on the trial, referring for a verification thereof to the statement of facts. A statement of facts, as above stated, is not before us. The motion states that:

“There is no affirmative evidence in the record showing that appellant was in possession of the property at the time he was arrested.” ■

If there was proof that he was in possession of it at any time after it was stolen, such possession would have been a lawful subject for consideration by the jury. As presented, we are unable to reach the .conclusion that the jury received evidence in its retirement. The court’s order overruling the motion imports a finding to the contrary. The record shows no abusive discretion in overruling the motion.

The judgment of the lower court is affirmed.  