
    COOPER v. STATE.
    (No. 10564.)
    (Court of Criminal Appeals of Texas.
    Jan. 26, 1927.)
    I.Criminal law i&wkey;>l 144(12) — Where bill of exceptions to admission of evidence omits supporting evidence, ruling beiow will be presumed correct.
    Where bill of exceptions, based on refusal to grant motion excluding state’s proof of flight of defendant on ground that he was under indictment for several offenses, did not incorporate supporting evidence, reviewing court will presume trial court ruled correctly.
    2. Criminal law ⅜=51oyá — Testimony that bag contained something hard, whicii rattled, was admissible to corroborate accomplice's testimony that stolen articles were plaeed in bag.
    Testimony of state’s witness in burglary prosecution that bag contained something hard, which rattled when lifted, was admissible as fact tending to corroborate accomplice’s testimony that he and defendant placed stolen articles in bag.
    3. Criminal law <&wkey;l 119(2) — Where bill of exceptions to leading questions is indefinite, and discloses no error, ruling beiow will not be disturbed.
    Where bill of exceptions, based on leading questions asked of state’s witness, is indefinite, and does not disclose facts showing error, ruling of trial court will not be disturbed.
    4. Criminal law <&wkey;>35l(3) — Evidence of flight is admissible, though accused was under indictment for several offenses.
    Evidence of flight of defendant was admissible in burglary prosecution as being connected with offense so as to render it relevant as circumstance bearing upon guilt, although he was under indictment for several offenses.
    5. Criminal law <&wkey;l202(4) — Prior conviction of burglary justified charge that defendant indicted therefor be sentenced to 12 years’ imprisonment, if guilty (Pen. Code 1925, art. 62).
    Charge to jury that defendant indicted for burglary be sentenced to serve 12 years in penitentiary, if found guilty, held not erroneous, but in accord with Pen. Code 1925, art. 62, providing for highest punishment on subsequent conviction of same offense, since state had proved that accused had been convicted of prior burglary.
    6. Criminal law <&wkey;942(2) — New trial was properly refused, though state’s witness denied veracity of original testimony; other evidence sustaining conviction.
    Testimony of state’s witness, on motion for new trial in burglary prosecution, that her testimony on original trial was untrue, did not justify new trial, since other evidence in record was sufficient to establish state’s case.
    Commissioners’ Decision.
    Appeal from Criminal District Court, Harris County; W. G. Love, Judge.
    Jack Cooper was convicted of burglary, and be appeals.
    Affirmed.
    Thos. P. Whiteside, of Dallas, for appellant.
    Sam D. Stinson, State’s Atty., of Austin, and Ro’ot. M. Lyles, Asst. State’s Atty., of Groesbeck, for the State.
   BETHEA, J.

The appellant was convicted of burglary in the criminal district court of Harris county, and his punishment assessed at 12 years in the penitentiary.

The record discloses that the appellant, on the 25th day of March, 1925, broke into and entered a house, to wit, a drug store belonging to, and controlled by, one J. O. Albertson, and took therefrom some lipsticks, face powder, face paint, and powder known as rouge.

The appellant, by his bill of exceptions No. 1, complains of the court’s refusal to grant a motion to restrain the state from proving flight on his part, for the reason that he was at the time of the trial of the instant case under indictment in a number of other cases, all of which were pending at the time of the alleged or actual flight. This bill is nothing more than a mere statement of a ground of- objection, and fails to incorporate any evidence to verify its truth. It merely states that the appellant was under indictment in a number of causes pending at the time of the alleged or actual flight. We therefore presume that the trial judge was correct in declining to grant appellant’s application.

Bill of exceptions No. 2 complains of the action of the trial court in permitting the state’s witness, Jimmie Oraig, to testify that a paper bag found in appellant’s place of business contained something hard, and that she could hear its contents rattle when it was picked up; the objection being that it was the opinion of the witness as to the contents of the bag. We are unable to agree with appellant’s contention in this particular. The accomplice witness Massey had testified that he and appellant had broken into the drug store, and taken the articles named above, and had carried them to appellant’s place of business, and placed them behind a can in an ordinary five-pound paper sack. This evidence was clearly admissible as a fact tending to corroborate the accomplice.

Bill of exceptions No. 3 complains of certain leading questions propounded to the witness Jimmie Oraig. This bill is vague, uncertain, and indefinite, and does not of itself disclose any facts necessary to show error. We therefore hold that the trial judge was correct in his ruling.

Bill No. 4 complains of the action of the trial . court in permitting the witness George Peyton to testify as to the flight of the appellant, on the ground that such testimony was prejudicial and harmful to the appellant ; that the appellant, at the time of the alleged unsuccessful search for him by the officers, was wanted by the police on more than one criminal charge; and that such circumstance of flight could not be used against him by the state as an indication of guilt. We are unable to agree with the contention of the appellant. This bill does not bring the case within the principle controlling in the case of Hicks v. State, 82 Tex. Cr. R. 254, 199 S. W. 487.

Bill of exceptions No. 5 complains of the action of the court in failing to instruct the jury to retiirn a verdict of not guilty; the appellant’s contention being that the evidence was insufficient to warrant appellant’s conviction, in that the testimony of the accomplice witnesses La Fawn and Massey was not ' sufficiently corroborated by legal evidence. We are unable to agree with the appellant’s contention. In the first place, the witness La Fawn, in so far as the record discloses, is not an accomplice, and his testimony tends strongly to corroborate the ac-' complice witness Massey; and we also hold that the accomplice witness Massey was corroborated by the testimony of the witness Jimmie Craig.

Bill of exceptions No. 7 complains of the action of the trial court in charging the jury that, if the “defendant be found guilty, he be sentenced to serve twelve years in the state penitentiary.” This bill shows no error, for the reason that the state proved that the appellant, on February 26, 1921, was convicted and sentenced to the penitentiary for a term of two years on a charge of burglary, the same offense for which he was being tried in the instant case, and the court merely gave in charge to the jury article 62, P. C. 1925.

Bill of exceptions No. 8 complains of the court’s refusal to grant the appellant a new trial on the ground that the state’s witness Jimmie Craig appeared in open court, and testified, on appellant’s motion for new trial, that the testimony given by her at the original trial was not true. We are unable to agree with the appellant’s contention, for the reason that there is other evidence in the record of sufficient cogency to establish the state’s case. If the evidence of the witness Jimmie Craig were vital to the state’s case, the contention of the appellant might be correct, but the state was not compelled to rely upon her testimony for the conviction. Wadkins v. State, 2 Tex. Cr. App. 292, 277 S. W. 684; McConnell v. State, 82 Tex. Cr. R. 634, 200 S. W. 842; Green v. State, 94 Tex. Cr. R. 637, 252 S. W. 499.

There being no error in the record, 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. 
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