
    VAUGHN v. STATE.
    (No. 5263.)
    (Court of Criminal Appeals of Texas.
    Jan. 29, 1919.)
    1. Criminal Law @=31064(7) — Appeal—Refusal to Charge. .
    In the absence of any statement of the grounds upon which defendant regarded his requested charge applicable, embraced within the exception to its refusal or the motion for new trial, the matter is not so presented as to demand attention "on appeal in view of Acts 33d Leg. c. 138, relating to criminal practice which has been construed consistently with the constructions of chapter 59, on civil practice, relating to the absence of assignments of error in criminal practice.
    2. Criminal Law @=>829(12) — Possession-Explanation — Request Covered by Charge.
    In a prosecution for theft of grain, where defendant’s possession was explained only by his borrowing money from witness to buy the grain, and defendant requested a special charge relating to explanation, given instructions that if the jury believed defendant was not present and did not break into the house, but subsequently received the property or they had reasonable doubt as to his presence, or believed that defendant did not buy the grain, they could not convict, ■ held to sufficiently present defendant’s rights.
    -3. Criminal Law @=>511(3) — Accomplice Testimony— Sueficiency to Sustain Verdict.
    Where grain was of a character difficult to ■identify with such certainty as would justify a conviction for its theft, evidence of an accomplice corroborated by circumstances held sufficient to sustain a verdict of guilty.
    Appeal from District Court, Taylor County ; Joe Burkett, Judge.
    Espia Vaughn was convicted of burglary, and appeals.
    Affirmed.
    H. Rob Keeble and Harry Tom King, both of Abilene, for appellant.
    E. A. Berry, Asst. Atty. Gen., for the State.
   MORROW, J.

The conviction is for burglary.

The fact that a warehouse was broken into .and four sacks of oats mixed with wheat stolen was established by the testimony of the owner of the premises.

To connect the appellant with the offense, the state relied on the testimony of an ac-- • complice and on circumstances corroborating him, proved by other witnesses. The accomplice testified that appellant proposed to get. the feed out of the warehouse, and that he (the accomplice) declined to go with him, but ■ offered to let him have a wagon for the purpose of hauling it; that later, according to. agreement, appellant called him, and he went, with appellant and found that he had two: sacks of oats in the wagon, and two other sacks nearby. These two sacks were loaded in the wagon by the accomplice and the appellant, and hauled first to the premises of the accomplice, where two sacks of the oats were left hidden, and then driven to the home of appellant, where a like disposition was made of the remainder. The course taken was traced by the sheriff. He identified the horse track by a peculiarity in the foot of the animal, and by the presence of oats and wheat along the route described by the accomplice. The grain found at appellant’s house was of the same class and description as that lost, and the testimony was to the effect that the mixture was not usual.

The appellant lived with his stepfather, who testified to appellant’s, absence from his home on the night of the offense, and that the grain was not on the premises on the evening before the burglary, but was there the morning following it. There was other evidence showing appellant’s presence near the burglarized house about 1 o’clock on the night the offense was committed, and that at the time he was in the company of the accomplice, Henery.

The appellant addressed no objections to the charge given by the court, but requested some special instructions, some of which were given and others refused. The refusal of one of these special charges embracing the law applicable to the effect of a reasonable explanation by one found in possession of property, recently stolen is made the basis of complaint.

In the absence of any statement of the grounds upon which he regarded this charge applicable, embraced within the exception to the refusal of the charge or the motion for new trial, the matter is not so presented as to demand ¿ttention. Bain v. State, 73 Tex. Cr. R. 528, 166 S. W. 505; Goldstein v. State, 73 Tex. Cr. R. 558, 166 S. W. 149; Berg v. State, 64 Tex. Cr. R. 618, 142 S. W. 884. The civil practice relating to complaints of the charge is in chapter 59, Acts Thirty-Third Legislature, and the criminal practice on the subject in chapter 138, of the same acts. The construction of the former by the Supreme Court in Ry. v. Dickey, 108 Tex. 126, 187 S. W. 184, is not in conflict with the rule stated in Berg v. State, 64 Tex. Cr. R. 618, 142 S. W. 884, particularly when the practice relating to assignments of error obtaining in civil matters, and the absence of such practice in criminal matters, is recalled. See Sessions v. State, 197 S. W. 718. The complaint of appellant is not, in our opinion, well founded, even if properly presented.

The appellant made no declaration explanatory of his possession of the oats. The only evidence on the subject of an honest claim to them is found in the testimony of a witness who claims to have loaned appellant $1.50 on his statement that he desired to give it to I-Iarry Harper for some feed. This, as we understand the record, occurred on the night of the offense, but prior to its commission. The special charges given at appellant’s request, we think, in connection with the main charge, fairly presented ap7 pellant’s rights under this testimony. One of the charges given involved the proposition that if they believed appellant was not present and did not take part in breaking into the house, but subsequently received the prop-' erty, or they had a reasonabe doubt as to whether he was present and took part, to acquit. And in another they were instructed that they could not convict unless they believed from the evidence beyond a reasonable doubt that appellant did not buy the oats from Harper as testified by the witness Gar-ves. Cleveland v. State, 57 Tex. Cr. R. 356, 123 S. W. 142; Kinkead v. State, 61 Tex. Cr. R. 651, 135 S. W. 573; Baldwin v. State, 31 Tex. App. 589, 21 S. W. 679; Reed v. State, 46 S. W. 931; Smotherman v. State, 47 Tex. Cr. R. 309, 83 S. W. 838; Michie’s Crim. Digest, Tex. Dec., vol. 5, p. 293; also p. 364.

The character of the property stolen is such as to be difficult to identify with such certainty as to' justify a conviction resting alone on its possession. Such, however, is not the case presented. The burglary was shown without dispute by competent evidence. The accomplice’s testimony connected appellant with its commission, and the circumstances corroborating him are sufficient to support the verdict.

The judgment is affirmed. 
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