
    (85 Tex. Cr. R. 101)
    TAYLOR v. STATE.
    (No. 5325.)
    (Court of Criminal Appeals of Texas.
    March 19, 1919.)
    1. Indictment and Information <§=>137(1)— Motion to Quash Complaint — G-bounds.
    That evidence showed that tires stolen belonged to P. was no ground for motion to quash complaint, which alleged that property belonged to H.; proper procedure being an objection to proof on ground of variance.
    2. Criminal Law <§=>1091(10) — Bills op Exception-Request fob Instruction.
    A bill of exception complaining of refusal of court to give certain special charges will not be considered, where it fails to show whether charges were asked before argument began, or after it ended, or at what step of proceeding.
    3. Criminal Law <§=677 — Withdrawing Written Evidence.
    One offering a writing as evidence may at any time withdraw same before it reaches the jury.
    4. Criminal Law <§=>680(1) — Introduction op Evidence — Order op Proop.
    Where state offered a writing in evidence, and on defendant’s objection, but before a ruling by the court, it was withdrawn, accused had no right to vary sequence of introduction of testimony, so as to compel introduction or reception of such writing in his behalf while state was introducing its testimony.
    5. Criminal Law <§=>1091(4) — Bills op Exceptions — Admission op Evidence.
    A bill of exceptions complaining of testimony, that property defendant was charged with having stolen was identified by owner at a certain time and place, in that such identification was out of hearing and presence of accused, will not be considered, where there is nothing in the bill which negatives fact of accused’s presence at such identification.
    6. Criminal Law <§=>938(2) — New Trial— Newly Discovered Evidence.
    An accused is not entitled to a new trial upon the ground of newly discovered evidence, consisting of testimony of defendant’s wife and another woman, who were both present at court .but were not put on stand by defendant.
    Appeal from Tarrant County Court; Jesse M. Brown, Judge.
    Coy Taylor was convicted of theft, and he appeals.
    Affirmed.
    Philip O. Lopp and Roberson & Cogdell, all of Ft. Worth, for appellant.
    W. E. Myres, Asst. Co. Atty., of Cleburne, and E. A. Berry, Asst. Atty. Gen., for the State.
   LATTIMORE, J.

Appellant was convicted of misdemeanor theft .of automobile tires, and his punishment fixed at 30 days in jail and a fine of $25.

Complaint is made that the evidence does not support the verdict. The proof shows that appellant worked for the Panther Auto Supply Company, of which W. M. Harrison was president and manager and in .whom the ownership and possession of the alleged stolen property was laid; that appellant had a friend named Shaw, who owned a Ford car which appellant sometimes borrowed, and that on one occasion, shortly before the institution of this prosecution, appellant borrowed the car, and when he brought it back it had two new casings on it, and that appellant said to his friend Shaw, “I put two new casings on your car.” These were the alleged stolen casings and were identified as the property of the Panther Auto Supply Company. Appellant offered no testimony to controvert any of these facts. He moved the court to quash the complaint because same alleged that the property belonged to one Harrison when, as he claimed, the proof showed it belonged to the Panther Auto Supply Company. This would not have been ground for a motion to quash, but, if available to appellant at all, same should have” been presented in the form of an objection to the proof on the ground of variance.

Complaint is also made of the refusal of the trial court to give certain special charges, but the bill of exceptions to the court’s action fails to show whether the charges were asked by appellant before the argument began or after it ended, or at what stage of the proceedings, and thus same are insufficient.

The sixth ground of appellant’s motion for new trial shows that the state offered a written memorandum to which appellant objected, but that, before the court ruled, the appellant withdrew his objection, and thereupon the state withdrew said proffered instrument, whereupon appellant immediately offered the same in evidence, and, the state objecting, the court sustained said objection. There was no error in the court’s action. The document had not gotten to the jury, and one offering evidence may at any time withdraw same before it reaches the jury. The appellant had no right to vary the sequence of the introduction of testimony so as to compel the introduction or reception of any evidence in his behalf while the state was introducing its testimony.

Complaint is made of the testimony of the witness Dangdon that the tires gotten by him from the witness Shaw were identified by the Panther 'Auto Supply Company people at the city hall. As stated in the bill of exceptions, the ground of the complaint, to wit, that such identification was out of the hearing and presence-of the appellant, is not well taken; there being nothing in either the bill or the testimony of the witness Langdon which negatives the fact of appellant’s presence at the time of such identification. In order to be sufficient, the bill of exceptions must not only show that a certain ground of objection was stated to the court by appellant’s counsel, but must go further and show that the ground stated in fact existed.

The language of the state’s attorney was not seriously objectionable in either of the instances complained of; we do not think that same constituted a reference to the appellant’s failure to testify.

Appellant further sought a new trial upon the ground of newly discovered evidence, attaching to his niotion the affidavits of two women, one of whom was the appellant’s wife. No sufficient showing is made either in the motion or in the affidavits, or in any other way, that such evidence was newly discovered. The court’s approval of the bill of exceptions in this matter shows that both said witnesses were present at court and neither were used or put on the stand by appellant.

There being no errors shown by the record, the Judgment of the lower court is affirmed. 
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