
    SMITH v. STATE.
    (No. 6170.)
    (Court of Criminal Appeals of Texas.
    April 27, 1921.)
    1. Criminal law <®=o798 (2) — Instruction against finding verdict by lot” proper.
    The practice in a prosecution of giving an instruction warning the jury against finding a verdict by lot is proper.
    2. Criminal law &wkey;l 169(1) — Testimony of owner of stolen automobile harmless to defendant.
    In a prosecution for theft of an automobile parked on a certain street, testimony from the owner that it was his custom to park his car at the place from which it was stolen was harmless to defendant, even if incompetent.
    3. Larceny &wkey;>43 — Testimony of owner of stolen automobile relevant.
    In a prosecution for theft of an automobile parked on a street, testimony of the owner that it was his custom to park his car at the place from which it was stolen was relevant, as a circumstance bearing on the merits of the case.
    Appeal from Criminal District Court, Dallas County; C. A. Pippen, Judge.
    Bill Smith was convicted of theft of an automobile, and he appeals.
    Affirmed.
    O. M. Cureton, Atty, Gen., and C. B. Stone, Asst. Atty. Gen., for the State.
   MORROW, P. J.

Conviction is for the theft of an automobile; punishment fixed at confinement in the penitentiary for five years.

We find no occasion to state the facts; suffice it- to say that they support the conviction.

Two exceptions to the charge appear: The first referring to accomplice testimony, which was completely met by the reading to the jury of appellant’s special charge; and the second relating to an instruction warning the jury against finding a verdict by lot. This practice has been approved; and in the present procedure we find no departure from precedents. Driver v. State, 37 Tex. Cr. R. 160, 38 S. W. 1020; McKelvey v. State, 69 Tex. Cr. R. 538, 155 S. W. 932.

The automobile was stolen from Wilkerson. At the time of the theft it was parked upon a certain street in Dallas. Complaint is made of the receipt of testimony from Wilkerson that it was his custom to park his car at the place from which it was stolen. Prom the bill as qualified it appears that the appellant had made an agreement to sell the car before it was stolen. We fail to perceive any hurtful consequences likely to result from the receipt of the testimony, even if it was incompetent. In the state of the present record we think it is relevant as a circumstance bearing upo'n'the merits of the case. The prosecution was upon circumstantial evidence, and the jury was accurately instructed upon the law covering that subject.

The judgment is affirmed.  