
    WALLACE v. STATE.
    (No. 7340.)
    (Court of Criminal Appeals of Texas.
    March 7, 1923.)
    1. Criminal law &wkey;l 169(5)—Evidence that when defendant was apprehended in another state he was in the penitentiary held not prejudicial error.
    Where, in a prosecution for burglary, defendant forfeited his bond, but was recaptured and brought back from Colorado, evidence that the officer who brought him back was permitted to testify that when he found him in Colorado he was in the penitentiary, held not prejudicial error, in view of an instruction not to consider it.
    2. Criminal law <&wkey;4l9, 420(1)—Evidence as to cost mark on stolen clothing recovered held not objectionable as hearsay.
    In a prosecution for burglary, that the owner of the burglarized building testified as to a cost mark on certain property, which was recovered, and that it was his individual cost mark, but in the handwriting of one of his employés, whose duty it was to place such cost mark on new goods brought into the store, heleJ not objectionable as hearsay; the employé putting the mart on the goods testifying directly that he had done so.
    3.Criminal law <§=>1036(5) — Admission of hearsay testimony without objection held harmless.
    Where, in a burglary prosecution, evidence objectionable as hearsay was admitted, hut no objection thereto was made, the error was harmless.
    Appeal from District Court, Parker County; IT. O. McKinsey, Judge.
    Jack Wallace was convicted of burglary, and he appeals.
    Affirmed.
    R. <3. Storey, Asst. Atty. Gen., for the State.
   LATTIMORE, J.

Appellant was convicted in the district court of Parker county of burglary, and his punishment fixed at four years in the penitentiary.

There are three bills of exception in the record. Appellant was arrested shortly after the alleged offense was committed. He made bond, fled, his bond was forfeited, and when he was recaptured he was in the Colorado penitentiary. The officer who brought him back from Colorado made- the statement that when he found him, in Colorado he was in the penitentiary. A bill of exceptions was reserved to .this testimony of the officer. The bill is qualified by a statement of the court below in effect that the answer of the officer was unexpected and apparently inadvertent. The question asked had for its purpose proof of flight, and was not such question as. to call for an answer that appellant was in the penitentiary. The court below instructed the jury not to consider the answer. There are cases in this state holding it not erroneous to prove that the accused was confined in another state. Campos v. State, 50 Tex. Cr. R. 104, 95 S. W. 1042; Cabrera v. State, 56 Tex. Cr. R. 151, 118 S. W. 1054.

Complaint of the fact that the owner of the alleged burglarized building testified to a cost mark on certain property which was recovered, and that it was his individual cost mark, but in .the handwriting of one of his employes, whose duty it was to place such cost mark on new goods brought into the store, would not be subject to the objection that it was hearsay. The record shows that the employé who put the cost mark on said goods was also a witness, and testified directly to the fact that she so marked said articles.

The remaining bill of exceptions presents an objection to the testimony of a witness, which is hearsay, but apparently harmless. The court’s explanation to this bill makes apparent the fact that after an objection was made at a certain point of the testimony of the witness in question, which objection would not seem to be good, said witness proceeded to answer the question objected to, and further made the statements now complained of as hearsay. The court certifies in said explanation that no objection was made to the hearsay testimony.

The evidence seems to justify the conclusion of guilt reached by the jury. It was circumstantial, but this character of proof often makes out as strong a case as can be made by direct testimony. No evidence was offered in behalf of. the appellant.

Binding no error in the record, the judgment will be affirmed. 
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