
    MEHLMAN v. STATE.
    (No. 6711.)
    (Court of Criminal Appeals of Texas.
    April 26, 1922.
    Rehearing Denied Nov. 1, 1922.)
    1. Criminal law <§=»1095 — Bill of exceptions not filed in time will be stricken out.
    Where the time allowed appellant in which to file bill of exceptions expired January 2, 1922, and he filed his bill on January 5, 1922, a motion to strike out the bill will be sustained.
    On Motion for Rehearing.
    2. Receiving stolen goods <§=>8 (2) — In prosecution for receiving stolen goods, acts and declarations of original takers admissible.
    Where, in a prosecution for receiving and concealing stolen property, it is necessary to prove the theft, the acts and declarations of the original takers are admissible.
    3. Criminal law <§=>673(2)— Evidence of declarations of thief must be limited in charge in prosecution for receiving stolen goods to showing theft.
    In a prosecution for receiving and concealing stolen goods, the purpose of the admission of the acts and declarations of the original taker introduced to prove the theft must be restricted in the charge.
    4. Witnesses <§=>48(4) — Confession of thief before conviction, admissible in prosecution for recovering stolen goods.
    The inhibition against testimony of an un-pardoned convict does not apply to a confession made before the person making it was convicted of the crime, and hence confession by the takers of stolen property, in a prosecution of another for receiving and concealing the property, was admissible, though such takers were thereafter convicted of burglary.
    5. Criminal law <§=>369(9) — Proof of dealings witty one from whom accused received stolen property held admissible to rebut good faith.
    In prosecution for receiving and concealing stolen property, proof of continued and surreptitious purchases at nighttime from one subsequently convicted of a theft, and of other similar transactions, though disconnected, is admissible in rebutting appellant’s claim of good faith on the purchase of the stolen articles.
    6. Receiving stolen goods <§=>9(l) — Whether accused knew that property received by him was stolen held for jury.
    It was a question for the jury, to decide whether accused knew, or ought reasonably to have known, that the property received by him was stolen property.
    7. Witnesses <§=(337(6) — Evidence of former conviction is admissible to affect credibility of accused.
    In prosecution for receiving stolen property, in which accused was a witness in his own behalf, a judgment showing him to have been convicted of receiving and concealing stolen property, two weeks subsequent to the date of the act charged in the instant, case, is admissible for the purpose of affecting his credibility.
    8. Witnesses <§=>359 — Absence of word “county” in judgment of conviction introduced to impeach accused held no valid objection.
    Where a judgment of conviction of a crime was introduced to impeach accused, it was no valid objection that the judgment failed to use-the word “county” in referring to the jail in which accused was to be confined. -
    9. Criminal law <§=l 173(3) — Where conviction was for misdemeanor, refusal of charges relating to value of the stolen property held not error.
    In a prosecution for receiving and concealing stolen goods, refusal of charges relating to the question of the determination of the value of the goods is not erroneous where accused was convicted of a misdemeanor.
    10. Criminal law <§=>780(2) — Where confessions .of takers of goods were introduced to prove theft, charge on accomplice testimony not necessary in prosecution for receiving goods.
    Where the portions of the confessions of the original takers of stolen property were admitted to prove the theft, it was not necessary to charge the law of accomplice testimony in a prosecution for receiving and concealing such property.
    Appeal from District Court, Ellis County; W. D. Harding, Judge.
    Mike Mehlman was convicted of receiving and concealing stolen property, and appeals.
    Affirmed.
    Tom Whipple, of Waxahachie, for appellant.
    R. G. Storey, Asst. Atty. Gen., for the State.
   LATTIMORE, J.

Appellant was convicted in the district court of Ellis county of receiving and concealing stolen property of value less than $50, and his punishment fixed- at a fine of $500 and 30 days in the county jail.

The trial term of the court below ended December 3, 1021. In his order overruling appellant’s motion for a new trial the court granted 30 days after his adjournment in which to file bills of exception. This time allowed appellant for said purpose expired January 2, 1922. The bills of exception were filed on January 5th. Our Assistant-Attorney General has moved to strike. out said bills of exception because filed too late. The motion must be sustained.

The evidence fully supports the judgment. That the property in question was stolen was shown beyond question. Same consisted of ■automobile tires, and it appears without controversy that four of said casings were taken to appellant the same night they were stolen, and his own testimony, besides that of various other witnesses, leaves no doubt of his knowledge of the stolen character of ■ said property. He carried the casings to Dallas, and sold two of them and turned the other two over to a party to sell for him.

No error appearing in the record, the judgment of the trial court will be affirmed.

On Motion for Rehearing.

Appellant accompanies his motion for rehearing by a certified copy of an order of the district court of Ellis county made on December 27, 1921, and within 30 days after the adjournment of. the trial term, in which order an additional 30 days is granted within which to file bills of exception. We now, therefore, consider said bills of exception in connection with the questions raised upon this appeal.

Complaint is made of the admission in evidence against appellant of portions of the confessions of Jones and Winn, they being the persons engaged in the taking of the property the receiving and concealing of which is here charged against appellant. It has always been held necessary to prove the theft of the property in a case such as the one before us, and, as part of the proof of such fact, the acts and declarations of the' original taker or takers thereof are admissible, but the purpose of the admission of such evidence must be restricted in the charge. Tucker v. State, 23 Tex. App. 512, 5 S. W. 180; Cooper v. State, 29 Tex. App. 8, 13 S. W. 1011, 25 Am. St. Rep. 712; Meek v. State, 71 Tex. Cr. R. 433, 160 S. W. 698; Goldstein v. State, 75 Tex. Civ. App. 390, 171 S. W. 709.

That, since their alleged confessions were made, the original takers of the stolen property have been convicted of burglary, and at the time of this trial were serving terms in the penitentiary, would not seem ground for the rejection of the confessions made by them admitting their guilt prior to the time of their said conviction. The inhibition is against the testimony of an unpardoned convict. At the time .these statements were made the makers thereof were not subject to the objection named.

Appellant claimed to have bought four new automobile tires, same being the. property in question in this case, from one Winn at about 11 o’clock at night, paying $25 for the four. While on the witness stand in this case, and having stated that he did not believe and had no reason to believe that Winn was a thief, or that the four casings were stolen, the state asked him a number of questions relative to his purchase from Winn at other times and at night of numerous articles, such as sugar, tobacco, cigarettes, etc. By several bills of exception complaint is here presented of these questions. Proof of continued dealing with Winn in the surreptitious purchase at night of various articles of merchandise would have weight in rebutting appellant’s claim of the good faith asserted by him in the purchase of the articles in the instant case.

It was a question for the jury to decide whether appellant knew, or from the’ circumstances surrounding the sale ought reasonably to have known, that the property received by him from Winn was stolen property, and we think the testimony of other transactions similar in character and surroundings, whether occurring before or after that involved in the instant transaction, would serve a useful purpose in showing the attitude of appellant toward the transaction in question. On questions of intent or system, or a case depending on circumstantial evidence, as here involved, proof becomes admissible of other similar but disconnected transactions. Hennessy v. State, 23 Tex. App. 340, 5 S. W. 215.

Appellant was a witness in his own behalf, and as such he was properly subject to attack by showing that he had been convicted of theft or other offenses involving moral turpitude. The introduction of a judgment showing him to have been convicted of receiving and concealing stolen property at a date some two weeks subsequent to the date of the charge laid in the instant case would have been admissible for the purpose of affecting the credibility of appellant as a witness. The admission of said evidence was restricted in the charge of the court to the purpose mentioned.

It was no valid objection to the judgment so offered that it failed to use the word “county” in referring to the jail in which the verdict and judgment in said other, ease committed appellant. It is obvious that a verdict fixing confinement in jail as the. penalty would mean the ecfhnty jail of the county of trial.

Appellant has a lengthy bill of exceptions complaining of the refusal of a number of special charges. We have carefully examined this bill of exceptions, and find nothing therein, nor in the motion for new trial, nor in any of said charges contained in said bill, which in any wise suggests to this court or to the trial court any reason why said charges or any of them should have been given, nor stating any fact or facts to which they were- or might have been applicable, nor why the refusal of such charges was error. In this condition the refusal of consideration of such bill of exceptions seems to have been held proper. Bain v. State, 73 Tex. Cr. R. 528, 160 S. W. 505; Hill v. State, 76 Tex. Cr. R. 269, 173 S. W. 1022. However, we have examined said charges at length, and think none of them present error. A number of them relate to the question of the determination of the value of the alleged stolen casings, and we observe that the conviction was for a misdemeanor, and the refusal of these charges would not be erroneous.

The portions of the confessions of the original takers of the alleged stolen property were admitted and restricted by the court in the charge to the question of proving the theft. We do not think it necessary for the court to have .charged in such state of case the law of accomplice testimony. Meek v. State, 71 Tex. Cr. R. 433, 160 S. W. 698. Some of said charges were covered by the main charge, which submitted the good faith of the appellant in the purchase of the casings as an affirmative defense.

Finding no error in the motion for rehearing justifying a reversal of the case, •same will be overruled. 
      
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