
    HUTSON v. STATE.
    (No. 10739.)
    Court of Criminal Appeals of Texas.
    March 2, 1927.
    Rehearing Denied May 25, 1927.
    1. Criminal !aw &wkey;>l035(5) — Defendant cannot complain that name of juror stricken by peremptory challenge was not omitted, in view of failure to protest.
    In prosecution for theft, defendant cannot complain that name stricken from jury list by peremptory challenge was not omitted, where he did not call court’s attention to mistake when jury was impaneled and made no further protest when court advised that he would discharge jury if defendant desired it, since such course was equivalent to acceptance of juror. • .
    On Motion for Rehearing.
    2. Larceny &wkey;>55 — Evidence held to support conviction for theft of automobile.
    Evidence held sufficient to support conviction for theft of automobile, where witness identified defendant driving car away by lights from approaching car.
    3. Criminal law <&wkey;'74!(l), 742(1) — Jury are exclusive judges of credibility of .witnesses and weight of testimony.
    Jury are exclusive judges of credibility of witnesses and weight to be given their testimony in criminal case.
    Appeal from District Court, Bosque County; Irwin T. Ward, Judge.
    Dennis Hutson was convicted of theft, and he appeals.
    Affirmed.
    Troy Deason, of Glen Rose, for appellant.
    Sam D. Stinson, State’s Atty., and Robt. M. Lyles, Asst. State’s Atty., both of Austin, for the State.
   HAWKINS, J.

Conviction is for theft of an automobile, punishment being two years in the penitentiary.

On the night of August 13, 1926, J. F. Mof-fitt drove his automobile (a Chevrolet, 1925 model) into the picnic. grounds near Clifton and parked it at a point designated by the parties in charge. About an hour later, when he returned for the car it was gone. It was found about ten days later in the brush in a creek bottom, at which time the four casings, tubes, and rims had been taken from it. A witness testified that on the night the car was stolen he had gone to the picnic grounds and was requested by the party in charge of parking space to relieve him for a short time; that after he had been there a short time he heard the noise of cars moving, and that a Ford car with two persons in it, followed by a Chevrolet with lights out and also having two persons in it, passed out of the gate, after which the lights on the Chevrolet car were turned on; that within five minutes Mr. Moffitt made inquiry for his ear, stating it had been taken out of the grounds. As the Ford and Chevrolet ears were leaving the picnic grounds, another ear was approaching and the lights from the approaching car enabled this witness to see and identify appellant as the party driving the Chevrolet. His identification was positive both- at the trial and at the time he first saw appellant in jail when he picked him out from other parties there. Appellant did not testify. He introduced his wife, brothers, and other parties who gave testimony to the effect that he was not at the picnic grounds on the night the car was stolen, but was at his home some 40 miles away. This testimony, if accepted by the jury, would have authorized the acquittal of appellant. It was rejected. It is urged that because the witness who saw appellant drive a Chevrolet out of the picnic grounds did not identify that Chevrolet as the one belonging to Mr. Moffitt the evidence is insufficient to support a conviction. We are not in accord with this contention. While the witness did not identify the car, we think the circumstances do sufficiently designate it as the Moffitt ear.

Upon the jury list handed appellant and his counsel was the name of Hans Aars. Counsel for appellant, in exercising his peremptory challenges, struck Mr. Aars’ name from the list and left the name of J. P. Flnstad. By mistake, when the list of jurors was read by the clerk, Mr. Aars’ name was called and Mr. Finstad’s omitted. Neither appellant nor his counsel noticed the mistake; if so, they did not call the court’s attention to it until the trial was completed and the jury had -retired to consider the case, when, for the first time, the court’s attention was called to the fact that Mr. Finstad had been omitted from the jury and Mr. Aars called instead. As soon as his attention was called to the mistake, the learned trial judge informed appellant and his counsel if they had objection to Mr. Aars serving further upon the jury the court would recall the jury, withdraw the case from them, discharge the jury, and summon a new one to try the case. Appellant did not insist on this being done and made no further protest at the time. Upon motion for new trial, however, appellant urges the mistake of retaining Mr. Aars on the jury as ground for new trial. We think this contention cannot be sustained. It was the duty of appellant to call the court’s attention to the mistake at the time the jury was impaneled. If he did not then notice the mistake, when the court advised that he would discharge the jury and select a new one if he desired it, he should have made known to the court his wish in the matter. The course pursued by him was equivalent to an acceptance of the juror. He is placed in the position of taking chances on the verdict of the jury being favorable, and, being disappointed in that, seeking x to urge a matter as ground for a new trial which he had already waived.

Finding no error in the record, the judgment is affirmed.

On Motion for Rehearing.

LATTIMORE, J.

Both in his written motion and oral argument on presentation thereof appellant insists that the testimony in this case did not justify the jury in arriving at the conclusion of guilt. Appellant did not testify in the case, but relied upon rela-; tives to negative the fact that he took the alleged stolen automobile. .Beyond question, he was at the picnic park from which the car was stolen. The witness Draper testified positively that he saw appellant drive a car, claimed,to be the stolen car, out of the park on the night of its alleged loss. Appellant’s counsel urges strenuously that, under the circumstances detailed by the witness, he could not have been positive in his identification and that such circumstances should cause us to hold the evidence insufficient. We are unable to take the view of our duty which seems to obtain in the mind of appellant. The jury are made the exclusive judges of the credibility of the witnesses and the weight to be given their testimony, by our statute. Draper testified that he did identify appellant as the driver of said ear, and further stated the kind of clothes he had on, and when he next saw him he again identified him, and then again a few days later after appellant’s arrest Draper identified him. We deem it beyond. our province to so take away from -the jury their right to decide matters of conflict in the testimony as to lead us to reverse a ease under such facts as appear in this record.

The motion for rehearing will be overruled. 
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