
    BRIDE v. STATE.
    (No. 5628.)
    (Court of Criminal Appeals of Texas.
    Jan. 21, 1920.
    On Motion for Rehearing, Feb. 18, 1920.)
    1. Larceny &wkey;?65 — Evidence justifying CONVICTION OF FELONY THEFT.
    If defendant was guilty of taking the prosecuting witness’ automobile from one town to another, and the evidence -showed that he took part of the alleged stolen property from the car, this would justify the conclusion that he took all of the property and took it at the same time, making him guilty of felony theft where the aggregate value exceeded $50, and it is immaterial that there was no direct proof of taking of the remainder of such articles.
    2. Larceny t&wkey;23 — Recoveby of part o>f PROPERTY DOES NOT REDUCE GRADE ' OF OFFENSE.
    The fact that the owner recovered a part of the property subsequent to the theft thereof -would not reduce the grade of the offense below that of felony theft.
    3. Larceny <&wkey;41 — Defendant presumed to HAVE TAKEN ALL OF STOLEN PROPERTY WHERE PROOF SHOWS HE TOOK PART OF IT.
    If property be taken in such a manner as to malte it reasonably appear that all-was taken at or about the same time and place, and the proof shows that defendant took a part of it, it ■will be presumed that he took all of such property. , .
    4. Criminal law <&wkey;673(5) — Purpose for WHICH EVIDENCE OF OTHER OFFENSES IS ADMITTED SHOULD BE LIMITED.
    Where defendant filed his plea and asked for a suspended sentence, and evidence was admitted on behalf of the state attacking defendant’s reputation and tending to show him guilty of other offenses, the court erred in failing to limit the purpose for which such evidence was admitted.
    Appeal from District Court, Nacogdoches County; L. D. Guinn, Judge.
    James Bride was convicted of felony theft, and he appeals.
    Reversed, and remanded for new trial.
    Harris & Harris, of Nacogdoches, for appellant. ,
    Alvin M. Owsley, Asst. Atty. Gen., for the State.
   LATTIMORE, J.

Appellant was convicted in the district court of Nacogdoches county of felony theft, and his punishment fixed at six years in the. penitentiary.

The indictment alleges D. L. Thomas to be the owner of the stolen goods, and the proof showed that he was a drummer, traveling through the country in an automobile, selling tobaccos, and that he had on the back of his car a sort of a box or receptacle in which he' carried samples of his wares. On the night in question Thomas parked his car near the Elks’ Club, in the town of Nacogdoches, and when he came after it later he found it gone. The next morning he found the car in a different part of the town, and tobacco samples, stated by him to -be worth $42, were gone. Also a raincoat worth $10, an auto hood worth $7.50, and a kit of tools worth $10 were missing. Subsequently a part of the tobacco and the raincoat were returned to him by the sheriff.

The various questions raised by the appellant will be treated in the order in which they are presented in his brief. The various theories of the .defense, and also the law applicable to both felony and misdemeanor theft, were submitted to the jury.

No special charges appear to have been requested by the appellant. Appellant’s first contention is that the court erred in submitting to the jury the law of felony theft. We are not in accord with this contention. Property of the value of $69.50 was taken from said car on the night in. question. Proof that one accused of. theft took part of the property which was lost will support a conviction for the taking of all the property lost at the same time and place. Wilson v. State, 70 Tex. Cr. R. 631, 158 S. W. 516; Harris v. State, 29 Tex. App. 104, 14 S. W. 390, 25 Am. St. Rep. 717. Nor would the fact that the articles alleged to have been stolen were actually taken one at a time from the automobile reduce the theft to a misdemeanor, if the value of all Of the articles lost on said occasion aggregated more than $50. Wilson v. State, 70 Tex. Cr. R. 631, 158 S. W. 516; Harris v. State, 29 Tex. App. 104, 14 S. W. 390, 25 Am. St. Rep. 717.

We also are of opinion that the allegation of ownership was met by the proof. When property alleged to have been stolen is shown to have been in the actual care, control, and management of one who holds the same as agent for another, it is sufficient to allege ownership in the agent, and proof of his care, control, and management will meet such allegation. The proof of ownership need not consist of a formal statement by the alleged owner that it was his property that was taken, but, as in this case, such proof may be made by the testimony of the alleged owner speaking of it as “my” property, or by the statement.of how much he paid for the alleged stolen property, or in various other ways and phrases used by one speaking of property which belongs to himself.

Appellant contends that the venue was not proven, and the conviction cannot be sustained. There seems to have been no issue as to venue in the trial court, and under our statute we cannot sustain such contention when made for the first time here. Article 938, Yernon’s C. O. P.

It is further alleged that the court should have charged on the law of circumstantial evidence. We find ourselves unable to agree with this contention. Appellant admitted taking the car, with the other negro, on the night in question, and told the witness Millard that he took said car. Sam Rivers testified for the state that he saw appellant take part of -the alleged stolen goods out of said car; that some of said property was given to him, a part of which he later turned over to the sheriff, who returned it to the owner. It is well settled that either the direct testimony of an accomplice or the confession of the accused will take a case out of the domain of circumstantial evidence. True, appellant did not confess to taking the articles out of the car, but he did confess to taking the car; and the alleged accomplice gaye direct evidence as to seeing him take therefrom the property.

Appellant filed his application for a suspended sentence, which placed in issue his general reputation, and we think the court below did not err in allowing the state, on cross-examination, to ask appellant if he had not been charged in the courts with bootlegging and petty theft. Martoni v. State, 74 Tex. Cr. R. 90, 167 S. W. 349; Williamson v. State, 74 Tex. Cr. R. 289, 167 S. W. 360.

The witness Millard testified to conversations with appellant had after he had made bond subsequent to his arrest. We know of no legal reason why such statements made by the appellant while under bond are not admissible against him.

We have carefully examined this entire record, and find no error.

The judgment of the trial court will be affirmed.

■ On Motion for Rehearing.

In appellant’s motion for rehearing but two contentions appear, namely; that the evidence did not justify the submission of felony thgft, and that we failed to pass on appellant’s assignment, complaining of the action of the trial court in not limiting the testimony as to the character of appellant to the question of his right to suspended sentence.

In our view of the case, if the appellant was guilty of taking the automobile of the prosecuting witness from Nacogdoches to Melrose, said automobile containing at said time the articles alleged in the indictment to be thereafter stolen, and the aggregate value of which exceeded $50, he would be guilty of felony theft; if the evidence showed to the satisfaction of the jury, and without controversy that he took a part of the alleged stolen property, this would justify the conclusion that he took all of same, and took it at the same time. Nor would the fact that the owner recovered a part of the property subsequent to the theft operate to reduce the grade of the offense below that of felony, nor would the further fact that there was no direct proof of the taking of the remainder of the articles by tbe appellant reduce,tbe grade of tbe offense; it being tbe announced doctrine in tbis state that, if property be taken in suclr manner as to make it reasonably appear that all of tbe same was taken at or about tbe same time and place, and tbe proof showed appellant to have taken a part of it, tbe presumption is justifiable that be took it all.

As to the other ground of tbe motion for rehearing, we are of opinion that tbe same is well taken, and we frankly admit that we failed to observe and pass upon this part of appellant’s contention in our original consideration of the case. Appellant filed bis plea, and asked for a suspended sentence. Evidence was admitted on behalf of tbe state attacking tbe reputation of appellant, and tending to show him guilty of other offenses than the one on trial. Tbe trial court failed to limit tbe purpose for which tbis evidence was admitted. Appellant in due time and manner excepted to tbe charge of tbe court because of said omission, and no correction was made in said charge. Tbis should have been done. The charge in such case, should have limited tbe purpose and effect of such testimony. Tbe evidence was harmful to appellant. Williamson v. State, 74 Tex. Cr. R. 289,167 S. W. 360.

The motion is granted, and tbe judgment of affirmance set aside, and the cause reversed and remanded for a new trial. 
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