
    BERRY v. STATE.
    (No. 5696.)
    (Court of Criminal Appeals of Texas.
    March 17, 1920.
    On Motion for Rehearing, June 25, 1920.)
    f. Larceny <&wkey;64( I)— Conviction sustained by evidence of possession of part of property.
    From the recent possession of a part of the stolen property, theft of the' whole may be inferred and a conviction sustained.
    2. Larceny <&wkey;43, 45 —Testimony to ease of detaching parts of an automobile and ability to identify parts admissible.
    Testimony as to the ease with which the parts of a certain make of automobile could be detached and that witness was positive that a part in defendant’s possession was on witness’ ear when stolen, was admissible.
    3. Larceny <&wkey;>50 — Evidence of number on automobile, and that it was higher than any put out by the maker, admissible.
    Testimony to the number on the engine of an alleged stolen automobile, that it had been tampered with and bore a number much higher than any put out by the maker of that kind of automobiles, was admissible.
    4. Larceny <&wkey;45 — Numbers on certain make of automobile and authenticating a book containing such numbers admissible.
    Testimony that the numbers on the engines of certain automobiles ran serially, and that a book of such numbers for several years was authentic, and evidence of certain numbers of certain years’ make, corroborating the testimony, was admissible.
    5. Criminal law 169(2) — Error in admitting evidence of automobile numbers in a book held harmless.
    If testimony as to automobile numbers of a certain make as contained in a book was error, in a prosecution for theft of an automobile, it was harmless, in view of testimony of witnesses of their own knowledge to the facts sought to be established by the book.
    6. Witnesses <&wkey;268 (2)— Cross-examination of an alibi witness held proper.
    In prosecution for theft of a car, in city of Waco, it was not improper cross-examination to ask witness to defendant’s alibi if he knew “whether defendant had some one come to Waco and steal that car for him.”
    7. Witnesses &wkey;>268(2) — Question if witness knew defendant had raised the number on an automobile did not assume facts.
    Asking defendant’s witness on cross-examination if he knew whether defendant had raised the number on an alleged stolen automobile was not bad as assuming facts, where it appeared that such number was higher than any put out by maker of such car.
    8. Criminal law <i&wkey;945(2) — Newly discovered evidence held not sufficient to change result.
    In prosecution for theft of an automobile in W., newly discovered evidence that defendant registered a car at a point about 60 miles from W. on that day would not justify the inference it might produce different result; it being possible to register such car and reach W. in time to commit the theft.
    9. Criminal law <&wkey;304(6) — Court judicially knows distance of towns as affecting materiality of newly discovered evidence.
    As affecting the materiality of newly discovered evidence of defendant’s presence in one town on the day of an alleged theft in another, the court judicially knows the distance, and that defendant’s presence in both towns on tliat day was possible.
    On Motion for Rehearing.
    10. Criminal law <&wkey;72l (6) — Argument that no explanation of possession came from defendant not improper reference to defendant’s failure'to testify.
    Argument of state’s attorney that no one had explained defendant’s possession of stolen automobile, and that no explanation had come from him, was not comment on his failure to testify calling for reversal.
    Appeal from’ District Court, McLennan County; Richard I. Munroe, Judge.
    Charley Berry was convicted of theft, and appeals.
    Affirmed.
    John B. Atkinson, of Waco, and Chambers & Wallace, of Cameron, for appellant.
    Alvin M. Owsley, Asst. Atty. Gen., for the State.
   .LATTIMORE, J.

Apjjellant was convicted in the district court of McLennan county of the theft of property of the value of more than $50, and his punishment fixed at two years’ confinement in the penitentiary.

One D. L. Jamison owned and lost a 1919 model.Ford ear of sufficient value to make its theft a felony. When taken, it was parked on a street in the city of Waco, and its loss occurred about July 7, 1919. On said car at the time was an oversized steering wheel, with many odd marks, which made it easy of identification. Ford dealers who examined it testified that they had never seen a steering wheel just like it before. Jamison had it „before he purchased the car in question. There also were various other marks on said car by which he thought he could identify other parts of the car.

Some two weeks after his loss, Mr. Jamison found his steering wheel, according to his testimony, and a fender which he believed to have been on his car when it disappeared, at Cameron, some 60 miles from Waco, on a Ford car, in the possession of witness Stoltz. Mr. Jamison examined the car carefully, and said that other parts of the car did not have on them the marks of identification which he knew said parts on his car to have possessed. I-Ie also said that the number on the engine of said car ran about 900,000 above the motor number on the engine of his own ear.

Mr. Stoltz testified that lie bought this car in its then condition from appellant some time prior to July 15, 1919; that it was a secondhand car; that appellant told him that it had not been used long, and also told him that he got it in Temple from Ben R. Wilson. ■ The number on the engine of the car in Mr. Stoltz’s possession seemed to be 3908211, but.was really 3908711. When Mr. Jamison and the sheriff came and looked at the car, witness Stoltz went to appellant and asked him where he got the steering wheel on the car, and he then said he had ordered it from Sears & Roebuck. Appellant also stated that he had another car and had sold it, but did riot state to whom he had sold same, nor does such evidence appear anywhere in the record. According to the witness Stoltz’s recollection, appellant stated that he bought the other car from a Mr. Law, in Waco.

Sheriff Blaylock testified that appellant told him that he had ordered the steering wheel in question from Sears & Roebuck, and also that he had owned two cars, one of which he bought in Temple, and one in Waco; and witness was of opinion that appellant said he bought the one in Waco from a man named Law.

The state placed on the witness stand the tax collectors of Bell and Milam counties, and from them obtained and placed in evidence the duplicates of two receipts. The Bell county receipt was dated 7/9/19, and recited that it was in payment of the license fee for 1919 of a 1919 model Ford car, engine No. 3908211, purchased from Frank Doering; owner’s name, Ben R. Wilson, Temple. This tax collector said that he could not identify the man who registered said vehicle.

The Milam county receipt was dated July 7, 1919, and recited payment of the license fee for that year on a 1919 Ford model car; engine No. 3025710, purchased from J. W. Law, dealer; owner’s name, O. A. Berry.

It was shown that the numbers on Ford cars run consecutively, and that in July, 1919, they would reach about 3,200,000.

Mr. Doering testified that he dealt in Ford cars in Temple in 1919, and that he kept a record of all ears sold by him; that he did not know Ben. R. Wilson, and never sold him a Ford car at any time. For appellant, it was shown by a man who ran a negro pool hall for appellant, that he had business transactions with appellant on July 7, 1919, at Cameron. Two other witnesses testified that appellant was in Cameron on that day.

This is a sufficient statement of the facts.

It is here urged that the court should have given a peremptory instruction to the Jury, to find appellant not guilty, at the conclusion of the evidence. We cannot agree to this contention. It has often been held by this court that from the recent possession of a part of alleged stolen property, theft of the whole may be inferred and a conviction sustained. Hill v. State, 41 Tex. 256; White v. State, 17 Tex. App. 188; Gonzales v. State, 18 Tex. App. 453; Rose v. State, 52 Tex. Cr. R. 155, 106 S. W. 143.

In the case last cited, it was shown that a pocketbook was stolen, containing money and a drink check. The latter article alone was traced to the possession of appellant soon after the alleged theft. He was convicted, and the case affirmed by this court, the following language occurring in the opinion of the Presiding Judge:

“If the drink check was traced to appellant’s possession immediately after its loss, it would be very clear and cogent evidence of the fact that he took the pocketbook and all of its contents, for the check was in the pocketbook. There can be no question here that if appellant stole the drink check he stole the pocketbook and all of its contents.”

The principle involved in that case is closely analogous to the one in the case at bar. A week after the alleged car theft, appellant sold a car of the same model and make, upon which were found parts of the alleged stolen car. He said he bought the car on which were these parts from a man named Wilson, to secure whose testimony no effort seems to have been made, and who seems not to be known to the dealer in Ford cars at Temple, and also, not to have purchased from said dealer the Ford car mentioned in a receipt which he gave to Stoltz as having been received by appellant from said Wilson. After selling said car, and when the direct question was put to him as to where he got the steering wheel, appellant stated that he bought the same, himself, from Sears & Roebuck. This appears clearly to be false. The court told the jury in his charge that if appellant was not guilty of the original taking of the car they could not find him guilty, and also told them that any subsequent connection with said car or said steering wheel after their original taking would not suffice. The court also told the jury that if appellant purchased the steering wheel from another party, or the jury had any doubt on this question, they should acquit him. It was proven that the engine number on the car had been changed, and a number placed there, greater than any made by Mr. Ford up to that time.

The witness Jamison testified that within his knowledge and experience the parts of a Ford car were easily detached, and could be changed without much trouble, and he was positive in his identification of the steering wheel as being his and attached to his car when same was stolen. Appellant complains of the admission of this testimony, but we think it competent and material to show the positive identification of said witness, and to show the ease with which the parts of such cars as his could be shifted. Schnaubert v. State, 28 Tex. App. 222, 12 S. W. 732, is cited, but in that case, the only criminative evidence was that a brand on an animal bad been changed so that it resembled appellant’s brand. This court properly held it insufficient. We are unable to apply that case as authority here.

The witness Jamison on redirect examination stated that the number of the engine of the car found in Stoltz’s possession was about a million above the number on engines then put out by Mr. Ford. Appellant objected for various reasons, none of which seems to us applicable. The case was one of circumstantial evidence. Jamison’s car was a Ford — 1919 model. He said the car he found was the same make and model, and apparently about the same age as his. The mark of identification on the engine — its number— was material. If it had been changed, that fact was material. If when found it had a number a million higher than any then put out by the maker, that fact was material, as showing that the number had been changed. If witness knew such fact, it was proper for him to so state. ■

The witnesses Doering and Oruger, each of whom had dealt in Ford cars for years, testified to the fact that the numbers appear on Ford engines serially. The testimony of each of these witnesses showed substantially that all the engines of said make are numbered consecutively. Doering was permitted to identify a book, in which appeared the number of Ford engines manufactured during the five or six years next preceding, and to say by bis own use and experience in his own'business for a number of years, and actual comparison with ears handled by him and his invoices, that he knew said book to be authentic and reliable. This witness also testified from his own knowledge and purchases to the numbers on Ford engines in February, 1919, and also in June and July, 1919. Thereafter from said book it was shown what numbers of such engines were put out by the Ford factory in February, 1919, and July, 1919, the figures given being corroborative of the testimony of said witnesses. We think the testimony of Oruger and Doering admissible, in view of the affirmative testimony of the reliability and authenticity of said book, and of the fact that the engine numbers as occurring in said book were substantially the same as testified to by said witness, and that there was no error in allowing the testimony as to the engine numbers published in said book for February and July, 1919. Aldenhoven v. State, 42 Tex Crim. R. 6, 56 S. W. 914; Wright v. State, 44 S. W. 514, and others are cited, but do not support the position. An examination of these authorities shows that nothing was given as to the accuracy, correctness, or reliability of any .of the publications referred to in said opinions, and nothing was shown, making the contents of said books in any wise admissible. If said evidence as to the contents of the book was objectionable, same would be harmless, in view of the fact that the same testimony was given by the witnesses who knew the facts of their own knowledge.

The remarks of the court complained of had no bearing on the weight of the evidence referred to, but were addressed solely to the admissibility of the book in question. The court also qualifies the bill by saying that no objection was made to said remarks at the time same were made, and we think no error appears.

Objection was made to the question asked of appellant’s witness Posey, as shown by appellant’s bill of exception No. 11. By reference to said bill, it is disclosed that on cross- examination said witness was asked by the state: “Do you know whether or not Charles Berry had somebody to come to Waco and steal that car for him?” To this the witness answered, “I don’t know, sir.” We can see no transgression of the rule of cross-examination. This witness worked for appellant, conducting a pool hall and drink stand for him, and had testified very strongly to an alibi. The evidence in the case strongly tended' to support the theory that the car bought by Stoltz was stolen, as well as that lost by Jamison. Some one must have been the guilty party. Cross-examination, directed at finding who the guilty party might be, seems admissible.

It was also objected that said witness was asked if he did not know that-appellant had raised the number of that car something nearly a million. The court, in approving the bill containing both of said objections, states that the only objection made to the-question relative to the engine number being raised was, “It is assuming a state of facts not proven or intimated.”

It was practically undisputed that the engine number on the Stoltz car was nearly a million above those on Ford engines then existing. Some one must have raised it. There was no such assumption of fact as to make the objection tenable. Nor do we think any error appears in the bill, complaining of the remarks of the county attorney in his argument to the jury. No requested charge was presented, asking that the jury be instructed not to consider such remarks, an'd we are unable tó agree with any contention that the statement shown in said bill impinged the statute forbidding comment on-appellant’s failure to testify.

Appellant seeks a new trial, upon the ground of newly discovered evidence, the same consisting of the supposed testimony of the deputy tax collector of Milam county, to the effect that he issued to appellant a receipt for the registration of a car on the 7th day of July 1919. No reasonable excuse appears why this testimony could not have been obtained on the trial. If material and true, the facts were well within the knowledge of appellant. We do not think such facts of sufficient materiality to justify the inference that they might produce a different result. Cameron, the county seat of Milam county, is shown to he about 60 miles from Waco, where the alleged theft was committed. It is no stretch of judicial knowledge for us to say that ,it would be easy for one to register an automobile in Cameron on the 7th, and during the same day reach Waco in time to commit a theft.

Finding no reversible error in the record, the judgment of the trial court will he affirmed.

On Motion for Rehearing.

We have carefully re-examined the record in this case, in view of the urgent insistence of counsel, both by brief and argument, in support of his motion for rehearing. The case turns mainly upon the question of the sufficiency of the evidence. Briefly reviewing the facts, it appears from the record that about the 7th of July, one Jamison lost his Ford ear in Waco, Tex., and that on the 15th of the same month, a Ford car of the same model and make was sold by appellant to one Stoltz, in Cameron. Upon the ear of Jamison when lost was an oversized steering wheel of such peculiar markings and character as to cause Ford dealers of experience, who examined it, to testify that they had never seen one like it. This same steering wheel was upon the car sold by appellant to Stoltz. An investigation of the transaction was begun, and the owner came down and looked at the Stoltz car. Appellant was approached, and the subject of his possession and acquisition of said steering wheel directly put in issue, and the question was asked appellant as to where he got it. His reply was, as testified to both by the sheriff and Stoltz, that he ordered it from Sears & Roebuck. Mr. Jamison said that he had used this wheel, not only upon the alleged stolen car, but upon another Ford which he had formerly owned, and that he knew the said wheel well; that there could be no doubt at all of the fact that it was his wheel, and was the one which was on the alleged stolen car. The question then resolved itself into well-settled lines. Appellant was found in possession of a part of recently stolen property, and when his possession of same was called in question, he gave a false explanation thereof. It is well settled in this state that possession of recently stolen property, unexplained, or when accompanied by an explanation shown to be false, will support a conviction for theft. It would thus seem that the only question of fact left is whether or not proof of possession of a part of stolen property, unexplained, or accompanied by a false explanation, would suffice to support a conviction for theft of the whole. We entered into a rather full discussion of this matter in our original opinion, but appellant insists that there are circumstances and facts in this case which would tend to take it out of the rule laid down in the Hill and Rose Oases, cited in our original opinion, and bring it within the rule laid down in the case of Wafford v. State, 44 Tex. 430. We have examined the Wafford Case, and do not think it similar in any aspect to the instant case. In the Wafford Case the accused accounted for his possession of certain alleged stolon oxen which he had slaughtered, by a claim of purchase in good faith, which he corroborated by producing a bill of sale, and further supported by proof of open and notorious appropriation and slaughter, and the production of the hides and heads, etc., of said animals. In fact, the defensive evidence in the Wafford Case was of such character as to lead the Supreme Court to say:

“The evidence of the defendant is just such as an innocent man might be expected to produce if he had bought the oxen as he said he did.”

None of these facts are true of the instant case. Appellant’s only explanation of his possession of the steering wheel, of which he was in possession a week after it was stolen, was that he ordered it from Sears & Roebuck, and this, according to the testimony of Mr. Jamison, was unquestionably false. Further, in the instant case, notwithstanding appellant was shown to have been in possession of two Ford cars about the time of the alleged theft of a Ford car, and notwithstanding proof was made of the ease with which the parts of such cars might be shifted, and the identity of an individual car affected or destroyed, appellant offered no proof to show what had become of the other Ford-car which he had; it appearing that he told the sheriff, when questioned about it, that he did not know to whom he had sold it. Further, in the instant case, appellant was shown to be in possession .of a car on which he was using the steering wheel of Mr. Jami-son, .and it was made to appear that the engine number on said car had been tampered with and materially changed, so that this court could not say of the evidence in this case, as the Supreme Court said of the evidence in the Wafford Case, that the conduct of appellant is what one would expect of an innocent man under like circumstances.

We have carefully reviewed the facts and circumstances in the record, to see if there be anything which would bring this case within the rule announced in the Wafford Case, but are unable to find anything. There seems no evidence affecting the appellant’s acquisition of the entire Jamison car, which would rest upon a different footing from his acquisition of the steering wheel.

It is strenuously argued in the motion that appellant’s explanation of his acquisition of the ear sold to Stoltz was not shown to be false. Mr. Jamison did not claim as his the car sold by appellant to Stoltz, further than that the steering wheel on it was his. Whether the body of said car belonged to Mr. Jamison or not, he was unable to say, because it did not have any identification marks upon it, and the number of the engine was about 900,000 above his engine number. Mr. Jamison said when his car was taken it had a cracked spoke in one of the front wheels, which he could not find in the Stoltz ear. Mr. Jamison had apparently never claimed or made any effort to retake the Stoltz car, other than his steering wheel. So that it becomes immaterial whether the state proved the falsity of the claim of appellant as to the Stoltz car or not. The state did prove the falsity of his explanation as to the steering wheel, and that is sufficient for the purposes of this case.

Appellant insists also in said motion that it is not shown in this case that his connection with the alleged stolen car was not subsequent to its loss by theft. We do not understand that the question is raised by the evidence. Appellant did not claim, that the Jamison steering wheel was on the car when he bought it from Wilson in Temple, and we find nothing in the record to suggest any acquisition by him of the steering wheel, or the car upon which the steering wheel was when it was taken from Waco, subsequent to such theft.

Appellant again urges that we were in error in unholding the action of the trial court in permitting in evidence the book called the “Eord Owner Book,” and insists that our statement of the fact that the substance of what was there introduced out of said book was testified by witnesses from their independent knowledge was not correct. In view of these questions, we have again examined the testimony of the witnesses who gave evidence as to said publication. The only object of using said book at all seems to be to show that the serial numbers on Eord cars in 1919, and at the time of this theft, did not run anything like as high as the engine number upon the Stoltz car, and that in fact none of the numbers exceeded 3,200,000 at that time.

Examining the testimony of the witness Doering, we find that the question was asked him, if he received any cars from the Eord factory in February, 1919, and as to whether he had the invoice numbers, or the motor numbers of said cars. Witness answered that he could tell what the motor numbers were on Ford cars in June and July. This witness testified that said numbers ran about 3,200,000 to 3,100,000; nothing higher than 3,200,000 in July; and that he received the information from the invoices, and did not get it from said book. The witnesses further testified that within their own knowledge and experience the book was reliable, and its information correct. We see no possible harm from its admittance.

The only remaining question in said motion is that involving the argument of state’s attorney. Again examining the bill of exceptions containing said matter, it appears that the state’s attorney told the jury that—

“The presumption in this case is: If your car is stolen and you find me in the possession of it, the presumption is that I stole your ear, unless I explain my possession of it. No one tells you how the defendant came into possession of the J. Jj. Jamison car. No one has told you how the numbers were changed on that car. No explanation shows you how the defendant came into possession of that car. But I ask you here to convict the defendant, because no explanation came from him.”

The court, in approving this bill of exceptions, says that if any such remarks were made by the county attorney, he did not hear them; that no requests were presented to the court for instructions to the jury, and no objections were made, except that from time to time during the argument counsel for appellant did present a paper to the court on which he would contend were written objections to the remarks of the county attorney; that the county attorney contends that his intention in the argument mentioned was to call attention to the fact that at the time appellant explained to the sheriff and Mr. Stoltz where he got the steering wheel that he made no explanation as to how he came in possession of the ear. We think it permissible for the state to argue the failure of the defense to offer in evidence any explanation of appellant’s possession of recently stolen property, and that the fact that in making such argument the prosecuting attorney may have saidvthat no explanation came from defendant should not be held a violation of the rule forbidding comment upon his failure to testify such as would call for a reversal of the case.

Finding no error in the record, the motion for rehearing will be overruled. 
      ®=sFor other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes
     