
    JONES et al. v. STATE.
    (Court of Criminal Appeals of Texas.
    Jan. 10, 1912.
    Rehearing Denied Feb. 14, 1912.)
    1. Criminal Law (§ 1064) — Afpeal—Motion for New Trial — Evidence.
    A statement in a motion for new trial that accused believes a state of facts to exist does not present a matter for review, unless there is some evidence in support of the statement.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2676-2684; Dec. Dig. § 1064.]
    2. Criminal Law (§ 1090) — Review—Record — Bill of Exceptions.
    In the absence of a bill of exceptions, the record does not show error in the refusal of a special charge on the argument of the district attorney, since there is no evidence that the district attorney used the language in his argument stated in the motion for new trial, or, if he did, that there was any exception taken at the time.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. § 2818; Dee. Dig. § 1090.]
    3. Criminal Law (§ 539) — Evidence—Testimony of Accused at Former Trial — Admissibility.
    The testimony of accused on his former trial is admissible in evidence on his subsequent trial, though he does not testify at such trial.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. § 1230; Dec. Dig. § 539.]
    4. Criminal Law (§ 1054) —Appeal—Exception s — Admi s si o n of Evidence.
    Where no exception is reserved, the admission of testimony is not reviewable on appeal.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2662-2664; Dec. Dig. § 1054.]
    5. Criminal Law (§ 546) — Evidence—Testimony at Former Trial — Admissibility as to Codefendant.
    Where, on a trial of two defendants, the testimony of one of them given at their former trial was received in evidence without objection, the court properly charged that such testimony could not be considered for any purpose as to the codefendant.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. § 1236; Dec. Dig. § 546.]
    6. Criminal Law (§ 775) — Alibi—Instructions. '#
    Where accused denied committing the offense, but offered no proof that he was at a different place, the evidence did not call for a charge on alibi.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 1833-1837; Dec. Dig. § 775.]
    7. Criminal Law (§ 824) — Instructions— Requests — Necessity.
    Where the court charged on presumption of innocence and reasonable doubt, failure to charge on alibi raised' by the evidence was not erroneous, in the absence of a requested charge on the subject.
    [Ed. Note. — For other cases, see Criminal. Haw, 'Cent. Dig. §§ 1996-2004; Dec. Dig. § 824; Homicide, Cent. Dig. §§ 615, 651.]
    8. Robbery (§ 20) — Indictment — Issues, Proof, and Variance.
    Though an indictment for robbery alleged that $74 in the form of $10 bills, $5 bills, and $2 bills were taken from prosecutor, it is sufficient to prove the taking of any part of the money.
    .[Ed. Note. — For other case.s, see Robbery, Cent. Dig. § 27; Dec. Dig. § 20.]
    Appeal from Criminal District Court, Harris County; C. W. Robinson, Judge.
    Harrison Jones and another were convicted of robbery, and they appeal.
    Affirmed.
    C. C. Highsmith and C. E. & A. E. Heid-ingsfelder, for appellants. C. E. Lane, Asst. Atty. Gen., for the State.
    
      
      For other oases see same topic and section NUMBER in Deo. Dig. & *m. Dig. Key No. Series & Rep’r indexes
    
   HARPER, J.

Appellants were jointly indicted by the grand jury of Harris county, charging them with the offense of robbery by assault. They were jointly tried and both convicted, and jointly present this appeal.

We cannot consider that clause in the motion complaining of the improper conduct of the jury, in that defendants believe that the jury discussed and commented on the fact that defendant Roy Jones did not testify in the case. There was no evidence offered in support of such allegation, and a statement in a motion for a new trial that a defendant believes a state of facts to exist does not present it in such way that we can review it, unless there is some evidence offered in support of such allegation.

There are no hills of exceptions in the record. Therefore we have no evidence that the district attorney used the language in his argument stated in the motion for a new trial, nor, if he did use it, that there was any exception taken at the time. Consequently, as the record is presented to us (no evidence that the language was used), there was no error in not giving the special charges requested in regard thereto.

Neither can we consider the ground in the motion complaining that the court permitted the stenographer to testify to what Roy Jones had testified in a former trial of this ease. It is true that Roy Jones did not testify at this trial, but, if he had testified in a former trial of this case, his testimony at the former trial was admissible in evidence on this trial under the decisions of this court. Smith v. State, 75 S. W. 298; Preston v. State, 41 Tex. Cr. R. 300, 53 S. W. 127; 881; Collins v. State, 39 Tex. Cr. R. 441, 46 S. W. 933. No exception being reserved to the admissibility of this testimony, it is not presented in a way that we could act thereon, hut, if it were so presented, under the above decisions, it was not error to admit it. And, being thus admitted without objection, there was no error in the court instructing the jury: “I instruct you not to consider the testimony of Roy Jones given on a former trial of this case and read by the stenographer from his notes taken on the former trial for any purpose as to the defendant Harrison Jones.”

The court did not err in not charging on alibi. The defendants denied committing the offense, hut offered no proof that they were at another and different place. Therefore, the evidence did not call for such charge. However, if it had, no special instruction having been requested in regard thereto, and the court charging on presumption of innocence and reasonable doubt, it would not be error. Jones v. State, 53 Tex, Cr. R. 131, 110 S. W. 741, 126 Am. St. Rep. 776; Phillips v. State, 57 Tex. Cr. R. 160, 123 S. W. 1110.

The complaint that the indictment, having alleged that $74 was taken in the form of $10 bills, $5 bills, and $2 bills, that the proof must show that $10 bills were taken and $5 bills were taken, and $2 bills were taken, is incorrect. It is not necessary to prove that all the property alleged was taken. Proof of any part is sufficient. Harris v. State, 34 Tex. Cr. R. 497, 31 S. W. 388; Maloney v. State, 45 S. W. 719; White v. State, 57 S. W. 100.

There are several other criticisms of the charge of the court, but we have read the' same carefully, and do not think the criticisms authorized. It fairly and fully presents the issues in the case, and, if the testimony of the prosecuting witness Steve Hawkins is to be given any credence, it fully supports the verdict. The jury evidently believed him, and we do not feel inclined to disturb the verdict.

Judgment affirmed.  